Drug Testing Routinely After an Accident? Not Anymore . . .

Do you have a post-accident drug testing policy? Seems reasonable. Not anymore, though. If your policy requires blanket testing, it may be in violation of a new Occupational Safety and Health Administration Final Rule.

The new requirements set forth in 29 C.F.R. § 1904.35 are to encourage “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.” The new rule, which went into effect on August 10, requires employers to establish reasonable procedures for employees to report work-related injuries and illnesses. So, what is "reasonable" in the drug testing context?  The rule states that a procedure would “not be reasonable” if it would “tend to deter” or “discourage” accurate reporting.

The comments to the final rule maintain that blanket, post-accident drug testing policies “tend to deter” the reporting of job-related injuries and illnesses. They are, by the new rule, not appropriate and prohibited. The logic is that blanket drug testing after accidents could be perceived by employees as threatening or retaliatory, and employees who know they will be drug tested regardless of their role in an accident will be less likely to report the accident when it occurs.

The comments explain that there is not a complet ban on drug testing in the workplace, but cautions that there should be a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” for an employer to require a drug test after an accident.

OSHA will begin enforcing this new rule on November 1, 2016. If you have a blanket post-accident drug testing policy, it should be reviewed and revised. Contact an experienced employment law attorney to assist you.