Update your policy – new OSHA drug and alcohol testing policy regulation is in effect

By Michael Burns, courtesy of SBAM Approved Partner ASE

On December 1, 2016 the Occupational Safety and Health Administration (OSHA) implemented a new rule in part limiting mandatory post-accident/injury drug testing. The broader final rule targeted alleged retaliatory actions by employers (mandatory post-accident drug testing being one of them) for exercising rights protected by OSHA and its regulations. One reported reason OSHA promulgated a rule was to curb the pro-safety practice of drug and alcohol testing in the event of any accident or injury. OSHA believes the threat of blanket mandatory drug testing results in under-reporting of injuries due to an employee’s fear of being caught for drug use when reporting some injuries.

Since the original injunction was denied, OSHA may now issue citations and penalties as well as require abatement such as employment reinstatement and financial compensation if an employee’s rights were violated. Under the rules the employer is also required to inform employees of their right to report injuries and their right to be free from retaliation if they do.

Employers with drug and alcohol testing programs that include automatic testing in the event of injury or accident are in significant numbers. ASE’s 2015/2016 Policies and Benefits Survey reports that of 441 employers reporting, over 63% of companies do drug and alcohol testing post-accident. 

Those employers should review their policy addressing Post-Accident Testing and update it to state:

Post-Accident Drug and Alcohol Testing Policy Statement
Post-incident testing is limited 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. (For example, it would likely not be reasonable to drug-test an Employee who reports a bee sting or a repetitive strain injury.)

With the new administration in Washington DC, this rule may be reviewed and revised. Many employers agree that those who choose to drug and alcohol test in a non-discriminatory, comprehensive and uniform approach should not be penalized. The intent of a post-accident testing program is to determine if the employee was fit to work and to maintain a safe work environment.

Employers that have not reviewed their organization’s employee handbook for this issue and many others that were impacted by the Obama administration’s employment and labor law and regulation changes, may want to attend ASE’s upcoming half-day course – Designing and Updating Employee Handbooks. The next class will be held this month on February 15th.  Participants will not only learn how to develop or review an employee handbook but will be provided information on all the relevant legal compliance changes of the past few years. For more information on this timely class visit the ASE website.