Time to Review Your Drug Testing Policy

June 16, 2016

Employers who may use drug testing after an worker is injured or ill as a means of deterring employees from reporting the health incident which will now be on record as part of the new OSHA electronic record-keeping initiative should reconsider that idea.

BusinessInsurance.com says OSHA’s Improve Tracking of Workplace Injuries and Illnesses rule does not ban employee incentive programs or drug testing of employees, but it does prohibit employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses, according to the final rule, takes full effect Jan. 1, 2017

However, it is important to understand the new rule's anti-retaliation provisions go into effect on August 10.  Workers already can file retaliation complaints under Section 11(c) of the Occupational Safety and Health Act that allow the employer to be taken to court, but the new anti-retaliation provisions add another violation path for which OSHA can issue a citation and get abatement.

OSHA says in the final rule that employer policies should limit post-incident testing to situations in which employee substance use is likely to have contributed to the incident, and used when the drug test can accurately identify the impairment caused by drug use. For example, OSHA said, 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 tool malfunction.

“It does not ban specific programs,” Amanda Edens, deputy director, OSHA’s Directorate of Standards and Guidance, told members of the National Advisory Committee on Occupational Safety & Health in Washington, on Wednesday.

"But if employers are using post-incident drug testing policies as a distinct pre-text for retaliating against employees reporting injuries and illnesses, these are the types of situations the agency would take a careful look at in terms of whether or not we would issue a citation.”

Read more of the Business Insurance article and links to more of their reports here: