OSHA workplace safety rules update include major changes to drug testing

August 23rd, 2016 by Dakota Software Staff Industry News

Drug testing employees following a workplace injury or incident is a common health and safety tactic. This blanket approach likely runs afoul of new Occupational Safety and Health Administration rules that took effect in August, however. When OSHA introduced changes to its current workplace illness and injury rules, much of the text referred to differences in how businesses are now expected to track potential harm that could affect employees. While not taking up as much space in the changes as the illness and injury provisions, OSHA's clarification of its stance on post-incident drug testing is just as important for businesses from a compliance perspective.

A different approach to post-incident drug testing
Law firm Spencer Fane, LLP wrote that the change stems from OSHA's requirement that employee policies neither deter nor discourage reporting of incidents, injuries and illnesses related to work. OSHA believes blanket drug testing following an accident can lead to negative outcomes in terms of reporting, so it decided to change its rules to be more explicitly against such efforts. The organization wants to balance employee privacy concerns with the need for safety in the workplace. Instead of blanket screens, the federal health and safety regulator said businesses need to use a more context-based approach to such testing.

OSHA also included some qualifiers in the process, noting that testing should only occur when available drug screens can identify the impairment caused by drug use. It also believes employers need some kind of indication that worker drug use was at least a contributing cause to the accident before testing begins. Examples of prohibited testing in these circumstances shared by Spencer Fane include an employee reporting injuries like an insect bite or a repetitive motion injury.

Compliance with the specific measures of the new rules for post-incident drug testing are critical to ensure a positive relationship with and lack of sanctions from the regulator going forward, but it's also important to remember the source of the specific rule. As Reed Smith, LLP pointed out, the driving force of the new drug-testing rule is a desire to eliminate anything that can discourage or suppress the reporting of workplace injuries. Businesses need to consider alternative approaches to drug testing, like random, companywide efforts and testing based on reasonable suspicion, instead of relying on blanket post-incident screens.