As of December 1, 2016 the Occupational Safety and Health Administration (OSHA) put into effect new regulations regarding Recording and Reporting Occupational Injuries and Illnesses. Part of this provision was a new caveat on post-accident testing in which non-regulated industries were told they could not use post-accident testing as a retaliatory practice, rather, post-accident testing could only be conducted on the premise that there was “reasonable possibility” that drug or alcohol use contributed to the accident.

The purpose of this rulemaking was to increase the amount of worker’s compensation claims filed by employees. The administration felt that blanket post-accident drug testing with the retaliatory effect of the employee potentially being fired or losing non-medical disability benefits due to a positive drug screen resulted in employees becoming afraid to file a worker’s compensation claim even if their drug or alcohol use did not contribute to the accident.

To help clarify some of the questions non-regulated employers have over this rule-making, Quest Diagnostics published some key points for employers to know about this regulation and what employers need to do in order to prepare for this change:

  • Employers can and should continue to use post-accident drug screening
  • OSHA will not and cannot issue citations for drug testing required under a mandatory state law, a voluntary drug free workplace law, or a federally-regulated program
  • The OSHA regulation requires a “reasonable basis” for employers to perform a post-accident drug test and applies solely to post-accident tests

What should employers do?

  • Review your drug testing policy, especially for post-accident testing, to ensure compliance with the new OSHA guidance
  • Remove any blanket testing rules for OSHA post-accident testing and make certain testing occurs only when there is a reasonable basis to assume drug use contributed to an accident or injury
  • Review your state laws. State laws can be a central part of an employer policy. Adherence to drug-free workplace program and state worker’s compensation laws will not change and OSHA will not find a violation of these new regulations when post-accident testing is performed in compliance with these laws
  • Provide post-accident “reasonable suspicion” training for your supervisors and managers
  • Review your reporting procedures to streamline the process, making reporting easier for your employees
  • Implement a “decision tree” as part of your accident investigation and include the documentation from the decision tree as part of the accident investigation file

Random drug testing is the most effective form of drug testing that employers can implement in deterring future drug use in the workplace. As you review your policy and the way that your company handles post-accident drug testing, consider deterring use before an accident happens by beginning a random drug testing pool.

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