In Defense of Automatic Post-Accident Drug Testing

Written by Lucas Kibby, CleanFleet

Do you automatically drug-test after all work-related injuries or accidents? If so, have you been advised to remove this practice from your policy immediately in light of the Occupational Safety and Health Administration’s (“OSHA”) new reporting Rule, which went into effect on August 10, 2016?

The goal of the new OSHA reporting rule is to prevent drug testing or the threat of drug testing “as a form of adverse action against employees who report injuries or illnesses.” You are probably wondering how you can maintain a drug testing policy for work-related injuries without deterring or discouraging employee reporting in violation of the new Rule.

Before you remove this from your policy, consider simply updating your policy.

What OSHA doesn’t want, for example, would be 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.

Employers do not need to 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. So how do we state this clearly in a drug-testing policy?

The best way to be clear in the policy is to define the details of what constitutes a post-accident drug test. Setting a minimum reasonable cost for a drug test should prevent any repercussions down the road. For example, companies should add details in the policy that links post-accident testing to situations in which an employee caused or contributed to the accident and property damage of $1,000 or $5,000 as estimated by the employer.

This would remove any broad circumstances that may be viewed as a form of adverse action against employees who report injuries or illnesses. However, this may be a good time to note that DOT rules trump OSHA rules when it comes to post-accident drug tests. If there is a fatality, for example, the driver must be tested.

So what should companies do next? We have three recommendations:

1. Review your existing policies to see whether drug testing is currently required for all work-related accidents or injuries. If so, we recommend updating them immediately.
2. Limit the drug test in such a way so as to only test for drug or alcohol use at or near the time of the incident.
3. Have the policy clearly state that retaliation for reporting workplace injuries or accidents is strictly forbidden.

Want Your Drug and Alcohol Policy to be reviewed by Experts? CleanFleet Can Help

When was the last time you reviewed your policy? CleanFleet is a best-in-class testing service provider that can help companies with policy development or review from the ground up. Email or call us if you have questions at 503-479-6082.