OSHA made a revision to the recordkeeping standard we've all been watching. They felt mandatory post-accident drug and alcohol testing by employers would inhibit employees from reporting injuries. Things that inhibit employees from reporting are seen as retaliation, which violates the whistleblower standards. OSHA wants to remove any deterrent from employees reporting their workplace injuries.
OSHA amended the standard [29 CFR 1904.35(b)(1)(iv)] so employers must now remove any automatic or mandatory post-accident testing from their policies. The standard now states that an employer "must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness."
Many employers and business organizations fought this in court. The U.S. District Court of the Northern District of Texas Dallas Division, which presided over the case, decided in favor of OSHA. The standard took effect as of December 1, 2016.
It should be noted that this change does not affect pre-employment, random, return-to-duty, or reasonable suspicion drug testing. In addition, DOT post-accident drug testing requirements and state workers' compensation laws still stand and are unaffected by the OSHA standard.
What does this mean for you?
If businesses have written drug and alcohol programs that mandate post-accident drug and/or alcohol testing, consider changing the language to indicate that post-accident testing will be conducted if there is a reasonable suspicion that the injury could be related to drug or alcohol use.
If the policy states injuries should be reported immediately, it should be reworded to as soon as possible. If disciplinary action is taken when injuries are not reported, the policy should be reworded and the disciplinary procedures removed.
OSHA's interpretation of the revised recordkeeping rule is to limit post-accident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. The test results now have to show that there is a determination of impairment that could have affected the employee's performance.
Per OSHA, it would not be appropriate to conduct post-accident testing on employees who report an injury such as a bee sting or a repetitive motion type injury. It has to be determined by the employer that drug use could have been a contributing factor to the injury before sending them for testing.
View 4 Major OSHA Updates for 2017
Written by Cathy Bacher, Loss Control Specialist at Acuity Insurance.
