Employment Update – Post-Accident Drug Testing
Employers’ Post-Accident Drug Testing Policy Under Attack with OSHA’s New Electronic Accident Reporting Rule.
Much has been written about OSHA’s new Electronic Accident Reporting Regulations. Among other things, employers will be required to establish a “reasonable procedure” for employees to report work-related injuries and illnesses “promptly and accurately”. Additionally, the policy must not “deter or discourage” employees from reporting a workplace injury or illness and prohibits retaliation for any such report.
Post Accident Drug Testing
However, less has been written about OSHA’s position on post-accident drug/alcohol testing policies because it is not specifically part of the final rule. Nevertheless, buried in the 273 page commentary published by OSHA is its conclusion that mandatory or automatic post-accident drug testing will discourage reporting. Acknowledging that drug testing is a reasonable workplace policy in some situations, it proposes that any such post-accident drug testing rules be limited, “to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use”.
Case by Case Analysis May be Required
OSHA has also made it clear that employers with post-accident drug testing policies will be challenged to justify the decision to test based on the facts of the specific workplace incident or accident and that employers should no longer “rely on blanket policies requiring tests following a report of an injury”. In OSHA’s view, a blanket rule mandating post-accident drug testing will serve as a form of retaliation or adverse action against the employee which is considered unlawful under the new rule.
State Drug Free Workplace Programs are Exempted
The good news, if there is some, is that employers which participate in various states’ drug free workplace programs the new rule will not prohibit such testing as this is not considered to be “retaliatory” testing. For Ohio employers, those enrolled in the Ohio BWC’s Drug-Free Workplace Program (DFWP) will be permitted to continue post-accident drug testing.
Employers are encouraged to have their accident reporting procedures carefully reviewed and updated to comply with the new federal program and to also carefully scrutinize their post-accident drug-alcohol testing programs to ensure full compliance under the new federal law.
For more information on this and other matters, please contact Mansour Gavin’s Labor and Employment Practice Group.