Post-Accident Drug-Testing 2016 Update |
This summer, the Occupational Safety and Health Administration issued new regulations designed to curb employees’ fear of retaliation for reporting that, in turn, might discourage self-reporting of workplace accidents and injuries. As part of this, effective December 1, 2016, there are changes to how and when employers can test workers for drug use following an incident.
No longer are blanket rules that require drug testing following any workplace incident legal. Instead, writes OSHA, “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.” While the standard is not as high as “reasonable suspicion,” OSHA states that there should be a “reasonable possibility” that drug use contributed to the injury or illness.
What steps should employers now take?
These changes to post-incident testing have been contested, and their effective date has been pushed back twice. Given this, know that the enforcement standards are less clear than the compliance community might otherwise expect. That said, OSHA does list some real world scenarios for reference and better understanding:
In addition, know that the new OSHA regulations make other changes such as to workplace safety incentive programs. Under the new rules, these programs may not discourage employees from reporting incidents for fear of adverse action such as a program that disqualifies employees from rewards (i.e. monetary bonuses, prizes, and other incentives) for an accident and/or injury-free workplace.
As always, consult a legal expert to assure your specific policies are in compliance.
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