OSHA has made some changes to how employers track work injuries that brings drug policies into question. The new final rule, passed in May of 2016 and goes into effect January 1, 2017, states that employees have a right to report work-related injuries and illnesses free from retaliation. That is to say an employer’s procedure for reporting work injuries must be reasonable and not deter or discourage employees from reporting. The concern is if an employer has a mandatory drug test following a work injury, an employee under the influence of drugs or alcohol when their work injury occurred may not report it.
Interestingly, OSHA feels that this rule will prevent injuries, illnesses and death. Their thinking is that all work injuries will be reported and workplace hazards will be better identified and eliminated. This makes good sense if drugs or alcohol didn’t play an active role in the actual occurrence of injury. Of course, the exception would be drug testing following an accident for the purpose of complying with state or federal law or regulation.
While the rule doesn’t specifically prohibit drug testing of employees, it does prohibit employers from using drug testing as a form of retaliation against employees who report injuries or illnesses. So, beginning in January of 2017, employers will need a compelling reason for post-accident drug testing. The view on this is it will be very difficult for employers to prove it was “reasonable” for them to do any kind of post-incident testing on a worker reporting injury without having another law to point to. OSHA says that employer policies should limit post-accident testing to situations where drug use is likely to have contributed to the incident. For example, it would not be appropriate to drug-test an employee reporting a repetitive strain injury or bee sting. Employers do not have to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee contributed to the injury. So the million dollar question becomes, what is the definition of “reasonable possibility?”Back to Blog