Effective January 1, 2017, the Occupational Health and Safety Administration (“OSHA”) expanded its prohibition against retaliation such that employers may not have blanket policies that require mandatory post-accident drug testing. This does not mean that post accident testing is no longer allowed. It just means that employers should make sure that their policies have been reviewed to insure compliance with OSHA’s regulations.
The new OSHA standard does not, per se, prohibit post accident drug and alcohol testing. Now, if an employer wants to test for the presence of drugs or alcohol after an employee accident, they may do so only if they can demonstrate an “objectively reasonable basis” for doing so. OSHA takes the position that drug testing policies should be limited to situations where (1) employee drug or alcohol use is likely to have contributed to or caused the accident; and (2) the drug or alcohol test can accurately identify impairment caused by the alcohol or drug use. This language is sufficiently broad that it shouldn’t change post accident testing in most cases and it does not alter the requirements of state and federal law regarding post accident testing. For example, in the case of motor vehicle accidents, drug or alcohol use could have contributed to the accident so testing under such circumstances seems warranted.
The new standard is more problematic with regard to drugs than it is with regard to alcohol. Alcohol testing is quantifiable and therefore allows employers to determine whether alcohol use impaired an injured employee or an employee who contributed to the injury of another employee at the time the accident or injury occurred. On the other hand, drug testing, especially urine testing, is typically either positive or negative only. Thus, there is no quantity and therefore no way of knowing whether or not drugs caused or contributed to an accident.
So where does this leave employers? First, employers need to make sure their manuals are up to date and that they do not contain so called “blanket” drug testing policies. Policy language should now indicate that drug testing will be required in all cases where employee drug use was likely to have contributed to an accident or injury. When testing is done, the employer should document the reasons for the post accident/injury drug test.
Employers should also insure that employees are required to sign the employer’s anti-drug policy and consent to be tested. Often, employers have a blanket acknowledgement forms for their personnel policies but not for their drug and alcohol testing policies. A more specific acknowledgment of the existence of and terms of the anti-drug policy and testing requirements is preferable.
Finally, employers should consider what type of drug testing they are currently using. Urine tests can detect the presence of drugs in urine, but they are not particularly helpful in proving that an employee was impaired by drugs at the time of an accident or injury. On the other hand, blood tests which can show the presence of a drug in an employee’s bloodstream at the time of an accident or injury are much more useful to prove that a drug was active in the employee’s system. Therefore blood tests are more reliable to prove that a drug caused impairment at the time of an accident and thus preferable to urine tests for drugs.
As always, if you have any questions regarding personnel policies or policy manual updates, please do not hesitate to contact Ancel Glink.