Post-Accident Drug-Testing 2016 Update Printer friendly format

Doctors hand holding a bottle, with form and bill bottles in the background.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?
  1. Immediately (re)inform employees of their right to report and clearly state that retaliation for reporting is prohibited.
  2. Remove any blanket post-incident drug-testing policies and practices from employee manuals, HR standards, emergency procedures, etc.
  3. In employee manuals, HR standards, emergency procedures, etc. articulate the standards for which you will require a post-incident drug test:
    • When employee drug use could have reasonably contributed to the incident.
    • When the drug test can accurately identify impairment caused by drug use.
    • When the work itself is hazardous, the likelihood of a test is higher.
  4. If other employees are involved in an incident, drug test all employees involved if you test any.
  5. Note that all drug testing pursuant to state or federal law, for example Workers’ Compensation Drug-Free Workplace Policies or DOT mandated regulations, will remain in place regardless of the changes above. 
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.