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Published: August, 2016; Vol 13, Num 3

 

Anticipating the Impact of OSHA’s New Recordkeeping Rule on Post-Accident Drug Testing

By Jamie Becker

Key Dates in OSHA’s New Injury Reporting Rule

  • Effective November 1, 2016, employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately.
  • The new rule takes effect January 1, 2017.

OSHA’s new rule on the electronic reporting of workplace injuries and illnesses aims to ensure that work-related injuries and illness are being reported. For the LHSFNA’s summary of the rule, see our July 2016 article, For the Record: OSHA’s New Injury Reporting Rule” by going to www.lhsfna.org and clicking on Lifelines Archives.

A portion of the rule addresses perceived barriers that could discourage a reasonable employee from reporting a workplace injury or illness. While post-accident drug testing is not specifically mentioned as a barrier, OSHA commentary accompanying the final rule plainly states its enforcement position on post-accident testing policies:

“Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”

What does this mean for employers conducting post-accident drug testing?

The LHSFNA recommends that employers’ drug testing policies limit post-incident testing to situations where employee drug use is likely to have contributed to the incident. The drug test should also be able to accurately identify impairment caused by drug use.

For example, it would likely not be reasonable to drug test an employee who reports an allergic reaction, a bee sting or a repetitive strain injury like a back or muscle strain caused by overexertion or a diabetic episode.

Unreasonable testing policies like the examples above are likely to deter reporting without contributing to workplace safety or the employer’s understanding of why the injury occurred.

Additional recommendations for employers who conduct post-accident drug and/or alcohol testing:

  • Review policies to ensure they do not include overly broad “automatic” post-injury testing that could be viewed as a deterrent to employee injury reporting.
  • Tighten policies to link referrals for post-accident testing to situations where it appears an employee caused or contributed to the accident.
  • Consider removing post-accident testing from a policy completely and focus more efforts on reasonable suspicion testing.
  • Continue to comply with federal law. OSHA acknowledged that an employer who conducts drug testing to comply with federal/state laws or regulations will not be considered in violation of the rule because their motive is not retaliatory.
  • Employers who conduct post-accident drug and alcohol testing should continue to follow this issue closely.
  • Consult with legal counsel to determine whether their post-accident drug and alcohol testing programs comply with all applicable laws.

OSHA intends to issue additional guidance concerning the new rule. The LHSFNA will continue to monitor this issue and communicate the most up-to-date information as it becomes available.

Note: This articles includes information from several online sources, including the Federal Register, the American Society of Employers and Littler.com.

[Jamie Becker is the LHSFNA’s Director of Health Promotion.]