New regulations state that employers
should limit post-accident drug testing policies to situations in
which employee drug use is likely to have contributed to the
OSHA concerned that stringent
policies may deter injury reporting.
Incentive programs for accident-free
days also discouraged, with employers being encouraged to focus on
other safety indicators.
As you may be aware, in May of this year, the Occupational
Safety and Health Administration (OSHA) published new regulations
on discrimination and injury and illness reporting. These rules go
into force on August 10, 2016 for all employers. While, on their
face, these regulations appear to be merely an enhanced
anti-retaliation provision for reporting injuries, there is more
for employers to understand. OSHA is interpreting this rule broadly
to prohibit mandatory post-accident drug testing, concluding that
such tests discriminate against employees on the basis of injury
and illness reporting. OSHA further views incentive programs as
retaliatory if they offer benefits to employees or workforces who
do not report injuries and illnesses.
Employers who have a policy requiring drug and/or alcohol
testing following a work injury should review that policy given
these changes. OSHA is recommending only narrowly tailored
post-accident testing policies – testing where drug use
likely contributed to the accident and that accurately tests for
impairment. OSHA has stated that:
. . .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. For
example, it would likely not be reasonable to drug-test an employee
who reports a bee sting, a repetitive strain injury, or an injury
caused by a lack of machine guarding or a machine or tool
malfunction. Such a policy is likely only to deter reporting
without contributing to the employer's understanding of why the
injury occurred, or in any other way contributing to workplace
So, we are recommending to our clients that they review their
drug testing polices to determine whether they have a blanket rule
of required drug testing after any accident. Our suggestion is to
either revise that policy to require testing only where it appears
drug or alcohol use by the employee caused or contributed to the
accident. In the alternative, companies can remove the policy and
use purely a reasonable suspicion standard for all testing, whether
following an accident or otherwise. OSHA does concede that an
employer which conducts drug testing to comply with the
requirements of a federal or state law or regulation will not be
considered in violation of the rule, because its motive in
conducting testing is not retaliatory. Therefore, employers who
must conduct post-accident testing – pursuant to Department
of Transportation (DOT) regulations, for example – should
continue to do so, despite the fact that the DOT's testing
program mandates the use of urine drug tests, which do not measure
The other issue raised in these new rules relates to incentive
programs or rewards for accident-free days. Again, OSHA believes
that these programs have a chilling effect on the reporting of
injuries and that any such incentives should be based on other
safety factors (for example, spot checks for wearing safety
appliances/equipment, using proper lock-out tagout procedures,
proper lifting mechanics, etc.) and include other means that will
establish the program does not deter reporting of injuries and does
not constitute retaliation for reporting a specific injury.
If OSHA finds that an employer drug testing policy or incentive
program deters the reporting of injuries and illnesses by
employees, it may issue significant penalties for each violation.
Currently, OSHA may impose penalties of up to $7,000 per violationd
or, for willful violations, up to $70,000. However, those penalties
are expected to increase in August 2016 to as much as $12,471 and
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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