Is Your Post-Accident Drug Testing Illegal?

Post-Accident Drug Testing Under Fire by OSHA

Back in May 2016, OSHA released a new statement for electronic reporting of injuries in the workplace.  In this statement, there is mention that blanket post-accident drug testing can be considered retaliatory from the employer for employees who report injuries or illnesses.  This new rule was set to go into effect starting August 10th, 2016.

Since then, there have been numerous requests for clarification on this rule change, specifically the part about drug testing being “retaliatory” in nature.

OSHA has since releases some clarifying statements about this rule stating that they are limiting post-accident drug testing.  This is what they have said…

The Ruling

“OSHA believes the evidence in the rule-making record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing 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.… Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”

The vast majority of this statement I understand.  However, the one highlighted sentence is very disturbing.

Due to this rule change, I would recommend all companies evaluate your post-accident drug testing and make sure you aren’t testing every employee simply because they are injured.  If the causation of the injury could be impacted by human impairment, then testing is OK.

However, if the injury cannot be attributed to injury (example: repetitive motion injuries, Cumulative trauma musculoskeletal conditions such as tendinitis or back strain, bee stings), then testing should not be required.  It may also be important to review policies to make sure that if there is an accident, you are not just testing the injured employee, but ALL employees involved in the accident.

The Good – Reduced Retaliatory Drug Testing

As someone who runs a drug and alcohol testing company, I support most of this rule.  I can give you numerous examples where we have witnessed post-accident drug testing that seemed retaliatory in nature.  I won’t bore you with specific examples, unless you ask for a few in the comments below.

Suffice it to say that reducing the number of times a company uses drug testing in a retaliatory way is a good thing.

The Bad – A Drop in Reported Workplace Injuries

Anyway, just this weekend, we had a post-accident test come up.  It was about 7 PM on a Saturday.  I met the young man in my office.  He had broken a finger.  He was a little bit put out that he had to get tested, but nothing too dramatic.

The comments he made during the test shed light on this topic.  I will paraphrase, because I cannot quote exactly, but he said something along the lines of…” I don’t understand why I’m the one that got hurt, so I’m the only one being tested?  Shouldn’t everyone be tested who was involved in my injury?”  I explained that I was not sure of the specifics of his story, but likely he was being tested for workman’s compensation reasons.

He then said something along the lines of: “It’s just a broken finger, if I had known I’d have to go through all of this, I would’ve just taped it up myself.”

BAM!  That statement is exactly why this topic is being discussed and why OSHA is being accused of overreach in drug testing policies.  Now, I have no idea how his results will turn out, but he said he wasn’t worried about the results, he was just annoyed at the hassle.

But what he did say was that he would have avoided all the hassle by not reporting if he had known that hassle was involved in reporting.

The Ugly – Prove it!

Now, so far, this rule change isn’t really that bad… the result is that we’ll have some under-reporting of workplace injuries.  But the highlighted sentence above is where this rule change gets dicey and where over-reach is in full effect.

The statement says:  ”… for which the drug test can accurately identify impairment caused by drug use.”

The key thing is that this line now puts the burden of proving impairment on the employer.  There’s just one problem with that:  there are exactly ZERO impairment tests for illicit drugs.

As of today, we do not have a method to quantify impairment on any substance other than alcohol.  So, there is no way an employer can “accurately identify impairment caused by drug use”.

To further elaborate, I’ll you to an article already published by Attorney Paul Ross with MacAfee and Taft:  Mr. Ross perfectly articulates my thoughts on this issue.

Your Takeaway

Due to the lack of clarification (and a couple lawsuits pending from Texas on this same rule), the effective date is being pushed back to November 1st, 2016.  I will update you on the news related to this rule change as I am updated.

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In the meantime, it’s best that we have open rapport with our OSHA reps.  Let them know your thoughts and how it would impact your company and your safety program.  I believe post-accident testing is vital to every safety program as long as it’s in conjunction with a full comprehensive drug and alcohol testing program.

There are also some exemptions to this rule change where drug testing cannot be deemed “retaliatory in nature”.  These examples are:

  • States worker’s comp laws incentive laws including workers comp premium discount laws, WC Denial laws and Unemployment Denial laws. 
  • Insurance company incentives for post-accident/incident testing procedures.
  • Drug Free workplace policies with no blanket accident/incident working. 

We will keep trying to get further clarification for you on this rule change.  My goal is to give you talking points with your safety teams to understand this change in drug testing and to also have some information to pass onto your local OSHA representatives.  In the meantime, I suggest you take the following actions regarding your drug and alcohol testing program:

  • Review your non-dot drug and alcohol testing policy and have it rewritten and updated.
  • Review accident reporting procedures – streamline and make easy for employees to follow.  Consider a post-accident checklist as part of the investigation.
  • Make drug testing a component of the overall accident investigation and ALWAYS conduct a post-accident investigation prior to testing.
  • Drug test when impairment by drug or alcohol COULD BE a contributing factor.
  • Use some form of decision tree for performing post-accident/incident drug testing and document.
  • If multiple employees involved in the accident, make sure you test non-injured employees as well as injured employees
  • Create parameters for post-accident/incident test such as the rules used in DOT required post-accident testing.
  • Contact Lobdock to perform reasonable suspicion training for all supervisors involved with post-accident investigations.
  • Consider implementing a random drug testing program as an additional deterrent for existing employees.  Many states allow random drug testing and the OSHA regulations do not apply.  The cost of randomly drug testing a small percent of employees can easily be offset by the burdensome costs of drug use on the job.
  • Consider lab based oral fluid testing.  Lab oral fluid drug testing provides an affordable option for testing for the presence of drugs in a shorter detection window. This may be helpful to accommodate OSHA’s need to identify “impairment”.

If you need assistance with any of these action items or would like consulting on the best methods for your organization, I am offering a free 30-minutes assessment of your current program so I can give you some action items specifically for your organization to get ready for this rule change.

Click here to see how Lobdock can help you save money and headaches with proper implementation of drug testing policies that are smart, efficient, and effective.  Or call us at 1-855-753-7843!

About the Author Susan Lobsinger

Susan is founder and President of Lobdock Impairment Detection, a full-service, mobile drug testing and contractor compliance management provider. Lobdock provides safety managers with the objective data they need to make safety decisions that make a difference in the lives, safety, and health of their employees who work in safety sensitive positions.

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