Post accident drug testing.
Unless lawsuits attempting to overturn the rule or OSHA delays it further, December 1, 2016 is the date for implementation of a rule that employers are not prohibited from drug testing employees who report work-related injuries or illnesses so long as they have an “objectively reasonable basis” for testing. In addition, the rule does not apply to drug testing employees for reasons other than injury reporting. The rule only prohibits drug-testing employees for reporting work-related injuries or illnesses without an “objectively reasonable basis”.
OSHA also said that post-incident drug testing that is consistent with the terms of a state’s Drug-Free Workplace or workers’ compensation statutes, or federal law (such as U.S. Department of Transportation regulations) is not impacted by the rule and is allowed. Testing will be permissible even in the absence of such a state or federal law if an employer’s private insurance carrier offers discounted rates if the employer implements a post-incident drug testing policy. OSHA has also confirmed that random, pre-employment, and reasonable suspicion testing are not covered by the rule.
For post-accident drug and alcohol testing that will be conducted outside of one of the programs that is not covered by the rule, the key is having an “objectively reasonable basis”. OSHA’s focus to determine an “objectively reasonable basis” will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. It will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.
For example - A crane accident injures several employees working nearby but not the operator. The employer does not know the cause of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident. However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, the testing of reporting employees would be seen as a violation.
OSHA also stated that drug testing an employee whose injury could not possibly have been caused by drug use would likely violate the retaliation provision of the rule. For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury.
In the final rule, OSHA indicated that only drug tests that can indicate impairment at the time of the injury or illness would be permissible. The only test capable of such a determination is an alcohol test. OSHA now says it “will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.” OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs. This means that drug testing is allowed even if levels of impairment have not yet been established.
The guidance can be found at https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html