OSHA’s Electronic Recordkeeping Rule May Limit Post-Accident Drug Testing

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 All Employers

EFFECTIVE

November 1, 2016

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We reported in June about the Occupational Safety and Health Administration’s (“OSHA”) upcoming Electronic Recordkeeping Rule, which primarily addresses new employer responsibilities for reporting workplace injuries and illnesses. Notably, the Rule also discusses OSHA’s position on post-accident drug testing: “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.” (Emphasis added.)

Specifically, the Rule revises 29 C.F.R. § 1904.35 to state, in part, “[Employers] must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  OSHA acknowledged there was evidence that “blanket post-injury drug testing policies deter proper reporting.” (Emphasis added.)

Thus, employer use of post-accident drug testing will need to be carefully tailored to the incident at hand, rather than an automatic procedure following any injury or illness. OSHA further cautioned that, “Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.” OSHA does note that employers who conduct drug testing in order to comply with federal or state laws, e.g., workers’ compensation requirements, are not considered retaliatory actions in violation of the Rule.

Although blanket post-accident drug testing policies are commonplace in many worksites, employers may need to carefully reconsider their practices and procedures in order to be in compliance once the Rule becomes effective.

Action Items

  1. Review automatic post-accident drug testing policies and procedures to determine how the need for testing will be evaluated in the future.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2016 ManagEase, Incorporated.

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