Guest Blog Series: Post-Accident Drug Testing and the OSHA Rule
One of the more controversial aspects of OSHA’s new electronic recordkeeping rule is the increased examination of a worker’s ability to report accidents without fear of reprisal. Another hugely controversial aspect is the fact that a company’s injury and illness data will be available for public viewing, and this has led OSHA to fear that intentional underreporting will likely occur. It’s this fear, in part, that has driven the enhanced scrutiny of companies’ accident reporting policies.
OSHA has always stated you can’t discourage an employee from reporting an accident. It is only now, with this recent rule, that they view drug testing as a possible means of discouraging reporting. Initial employment and random drug-screening programs are not impacted by this rule and can proceed without concern; the scrutiny only relates to post-accident drug tests.
Can You Drug Test?
Can you drug test? Yes, you just need a legitimate reason for doing so. OSHA has provided two examples of when drug testing would be inappropriate. One scenario is an employee being stung by bees after opening an outdoor fixture and disturbing a hive. The second is an employee being injured by the mechanical action of an unguarded machine. OSHA believes, in these instances, physical or mental impairment would have no impact because the circumstance could occur with any employee. With the machine exposure, an inattentive employee could just as well suffer the same consequence. The larger issue is the unguarded condition of the machine, not the condition of the operator.
To navigate the minefield OSHA has created, an employer would be wise to institute a written policy that blanket post-accident drug testing does not occur. If your accident reporting program doesn’t state this, you have paved the way for OSHA’s position that you are attempting to discourage reporting and you may possibly be cited. Instead, the policy should be that discretionary drug testing will be used when evidence is present that physical impairment may have contributed to the incident (reasonable suspicion), or if drug testing is required by a governmental requirement, such a DOT regulation. Finally, the employer may state testing is used to simply further the financial interest of the company, for example if required by an insurance provider, or if a workers’ compensation claim is negatively impacted without testing results.
The Bottom Line
The bottom line is you can test. You simply need to justify why and in a way that a reasonable person could comprehend. OSHA can cite you; however, the burden of proof is on them. The minute you can provide a legitimate reason why drug testing occurred in a particular instance, their case goes away.
OSHA has delayed implementing the new electronic recordkeeping rule from the original date of July 1st to December 1st of this year, stating they need more time to assess all aspects. Keep in mind that a legal challenge is making its way through a Texas federal court because the rule is viewed as regulatory overreach, with prohibiting post-accident drug testing as one of the biggest complaints. It will be interesting to learn the outcome, or to see if the new administration will simply make this issue go away.
Todd Sieleman is owner of Todd Safety Consultation LLC, providing advice and direction to business owners on all things OSHA.
In 2016, Todd retired from OSHA as Assistant Director of the Kansas City Area Office, where he oversaw the effective administration of federal occupational safety laws within companies in the western half of the state of Missouri. Todd’s responsibilities included developing OSHA strategic initiatives, managing the performance of assigned compliance officer staff, and directing all enforcement actions related to inspections and accident investigations. Todd joined OSHA in 2009 as a Compliance Safety & Health Officer (CSHO) and accomplished scores of audits and accident/fatality investigations. He also served as 1 of 50 Compliance Assistance Specialists (CAS) nationwide to provide support to businesses by delivering training and subject matter guidance of OSHA requirements.