Employers are not allowed to have a blanket policy of requiring drug and alcohol tests after a workplace injury as it may discourage injury reporting, the U.S. Occupational Safety and Health Administration has said in an interpretation letter.
It issued the letter in response to a company’s blanket policy after some intoxicated workers had been injured on the job, and it comes as a new OSHA regulation on post-injury testing is slated to take effect at the start of 2017.
These recent actions should spur any employer with a policy of testing its workers post-accident to revisit its rules so they don’t run afoul of OSHA’s regulations.
OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule does not bar employers from drug or alcohol testing its workers, but it does prohibit companies from using such testing or the threat of it as a form of retaliation against employees who report injuries. These new rules were published in May 2016 and will take effect on Jan. 1, 2017.
However, the rules specifically point out that if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.
With this new rule the agency is likely to take a hard stance on mandatory post-injury drug testing without a compelling reason.
It is unclear what will happen to employers who enforce post-incident testing policies that OSHA deems unreasonable, although several experts say they expect the agency will attempt to cite employers.
The rule will likely have far-reaching effects considering that 56% of U.S. manufacturers had such policies, according to a 2012 study by the Government Accountability Office. That same study found that these policies “may discourage workers from reporting injuries and illnesses.”
OSHA says in the rule that employer 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 test can accurately identify impairment caused by drug use, according to the final rule.
Examples of instances that OSHA says would not be reasonable to conduct a drug test include:
• An employee who reports a bee sting.
• A repetitive strain injury.
• An injury caused by a lack of machine guarding, or by a machine or tool malfunction.
Under the rule, employers do not have to specifically suspect drug and/or alcohol use before testing, but there should be a reasonable possibility that such use by the reporting employee contributed to the reported injury or illness for the employer to mandate the testing.
The probable cause for a drug test would need to be based on observation and a good-faith belief that an employee is under the influence of drugs or alcohol. Such observations should be made by two people trained to spot such impairments and should be documented in writing
Employment law attorneys recommend that all employers look at their current policy for post-injury drug and alcohol testing, how that policy is communicated to employees, and what kind of feedback they had when the policy was put into place.