New rule deals with recording, reporting occupational injuries
Employers advised to continue post-accident drug screening
Under the new Occupational Safety and Health Administration (OSHA) regulations on recording and reporting occupational injuries and illnesses, employers can and should still use post-accident drug screening.
The specific regulation requires a ‘reasonable basis’ for employers to perform a post-accident drug test, however the rule does not apply to drug testing employees for reasons other than reporting injuries. In addition, OSHA will not issue citations for drug testing conducted under a state workers’ compensation law or other state or federal law.
Reasonableness of drug testing will consider a number of factors, including:
- Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness.
- Drug testing an employee who reports a repetitive strain injury would not be objectively reasonable because drug use could not have contributed to the injury.
- Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the injury occurred.
- High-risk, work-related injury or illness for workplace safety would allow drug screening.
- Whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness.
- Consider a crane accident. If only the injured employees are tested, and not the crane operator, this would be considered disproportionate testing of reporting employees and would be a violation.
Companies should keep in mind that OSHA does not impact Department of Transportation or other federally or state mandated testing. It only affects post-injury drug screening.
What companies should do:
- Review policies to ensure language does not mandate ‘blanket’ testing of all injuries.
- Consider training supervisors and managers on post-accident ‘reasonable suspicion and bias’ and review reporting procedures.
- Examine possibly establishing a ‘decision tree’ as part of manager training on reasonableness of drug testing and include decision tree documentation as part of the accident investigation trial.
Companies should not, however, drop all drug testing as those who do could be deemed an unsafe work site.
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