Many employers have strict policies requiring post-accident drug testing for any employee who suffers a work-related injury. A recently published rule by the Occupational Safety and Health Administration (OSHA) regarding, among other things, anti-retaliation protections within the workplace now casts doubt on the legality of such blanket drug testing policies. As with any violation of OSHA rules, the penalties for employers can be steep. Employers in Washington State should immediately review their HR policies since OSHA’s rule became effective December 1, 2016.
OSHA Says Post-Accident Testing Limits Reports of Injuries
In the accompanying explanatory materials, OSHA argues that blanket post-accident drug testing discourages many workers from reporting injuries out of a fear that they will be fired. OSHA goes on to say that appropriate post-injury drug and alcohol-testing policies must be limited to situations in which:
- There is reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury, and
- Drug testing should be utilized only when the drug test can accurately identify impairment caused by drug use.
Drug Testing Cannot Measure Impairment
Medical experts agree that most post-accident drug testing can only measure the presence of, say, marijuana metabolites within the body. The presence of such metabolites is not, however, evidence that there was any actual impairment. OSHA adds, for example, that under many employers’ blanket testing policies, an employee who is stung by a bee would be tested for drugs in spite of the fact that the bee sting was unrelated to the employee’s use of recreational marijuana a few days earlier. Post-accident testing must be tied to some evidence of actual impairment, says OSHA.
Pre-Employment Drug Screening and Random Drug Tests Aren’t Affected
Employers should recognize that pre-employment drug testing and programs that randomly test employees for drugs are not affected by OSHA’s new rule. Such tests are still allowed. Moreover, post-accident drug testing performed so as to comply with a state or federal law or regulation – for example, testing an over-the-road truck driver following an accident – is still allowed. OSHA says that it’s only trying to prevent employers from utilizing drug testing as a form of retaliation against those who report injuries.
Penalties Can Be Expensive
Violations of OSHA’s new rule come at a steep price. Employers that violate the anti-retaliation rule can be fined as much as $12,471 per violation and up to $124,000 for willful or repeat violations.
Stuck Between “a Rock and a Hard Place”
Some employers argue that they face a dilemma because of the new OSHA rule. On the one hand, they are encouraged to create and maintain drug-free work environments. On the other, they are penalized for testing injured workers to determine if that work environment rule has been violated. It remains to be seen how the apparent inconsistency in government inducements will play itself out.
Do Your HR Policies Regarding Post-Accident Drug Testing Need Review?
Do your HR policies concerning post-accident drug testing need revision? Have you reviewed the new OSHA rule? There are some exceptions to its application, but those exceptions are technical and complex. Blado Kiger Bolan, P.S. has more than 30 years of combined experience providing both businesses and individuals with quality legal services throughout the Pacific Northwest. We pride ourselves on designing the simplest, most effective solution for your legal issue. Because of our firm’s extensive experience in business litigation, we are also better equipped than many law firms to help you avoid the expense of a court battle. For assistance with a non-compete agreement or any other type of business issue, contact us on the web or call our office at 253-272-2997.