If you’re like most manufacturers, your drug and alcohol policy probably allows you to test an employee following an accident or near miss incident. But when OSHA released new anti-retaliation rules earlier this year, it changed the way employers can apply post-accident drug testing requirements. In the comments to the new rules, which took effect on December 1, 2016, OSHA says mandatory post-accident drug testing may have a chilling effect on employees reporting injuries. Because OSHA is seeking to eliminate workplace policies that discourage employees from reporting injuries, the agency is taking a critical view of mandatory post-accident testing policies. OSHA’s commentary doesn’t ban post-accident testing, but takes aim at automatically testing regardless of the nature of the accident. OSHA recommends post-accident testing only if: (1) there is a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness”; and (2) the drug test “can accurately identify current impairment.”
So what does this new interpretation mean for employers? It’s important to know two things. First, OSHA is not eliminating an employer’s ability to conduct post-accident testing. Second, OSHA is not restricting employers to only performing reasonable suspicion testing. Suspicion-based drug or alcohol testing allows an employer to test an employee when there are observable physical or behavioral indicators of being under the influence of drugs or alcohol, such as bloodshot eyes, slurred speech, or the odor of drugs or alcohol. Many employers have misinterpreted OSHA’s comments to mean that you can only do post-accident testing if you also have reasonable suspicion to test, but that isn’t correct. Instead, OSHA is requiring employers to at least be able to arguably draw a link between the cause of an accident and drugs or alcohol. OSHA cites several examples that would be inappropriate for drug testing, such as an employee who reports a bee sting or a repetitive strain injury, because there is no arguable link between the accident and the possible influence of drugs or alcohol.
Drug and alcohol testing can be a vital component of a safety program in a manufacturing environment, so you shouldn’t abandon post-accident testing altogether. Instead, refine your policy by narrowing your focus to accidents and injuries that could be reasonably related to current impairment (e.g., dropped forklift load or near miss) as compared to injuries, illnesses, or accidents when drug use is unlikely to be a factor (e.g., back strain or aging machine breakage). Your policy should also address the need for prompt testing after the accident, rather than testing after a delayed report. If an employee doesn’t see a doctor until a few days after the alleged injury, then testing for drugs isn’t relevant because it wouldn’t reveal anything about the employee’s condition at the time of the accident. You should also ensure that your post-accident drug testing policy requires a test not only after injuries, but also after incidents of property damage and near misses, to avoid a claim that only injured employees are subjected to testing.
Ultimately, manufacturers need to balance the importance of keeping drugs and alcohol out of the workplace with OSHA’s concerns about retaliation for employees who report injuries. With a carefully drafted policy and clear procedures, you should be able to maintain an effective post-accident drug testing program without violating OSHA’s anti-retaliation rules.