POST ACCIDENT REVISED TESTING PARAMETERS
OSHA’s final rule on electronic reporting of workplace injuries and illnesses
EFFECTIVE DATE 11/01/16
OSHA Changes Employer Post Accident Drug Testing Rules Effective 11/01/16
The Federal Government under OSHA (Occupational Safety & Health Administration) has issued a new ruling for Employers regarding – Post Accident Drug Testing – effective 11/01/16, which more directly impacts states with high profile “employee privacy laws”.
Below is how Insured Solutions will adjust our long standing testing policy until the effects of this interpretational (not legal) change has been court tested.
BELOW – YES – ALWAYS POST ACCIDENT DRUG TEST FOR THE FOLLOWING JOB DESCRIPTIONS (Including with Refusal of Doctors Care situations)
Driving of a motorized vehicle to/from a company job, between jobs or – on a job
Working around heavy machinery or equipment on or off site
Working at heights over 6’ on or off site
Working at depths greater than 4’ on or off site
BELOW– DO NOT POST ACCIDENT DRUG TEST FOR THE BELOW INJURIES
CT (Cumulative Trauma)
RM (Repetitive Motion)
Carpel Tunnel
Strains of any kind
Muscle spasms
Eye injuries
Simple cuts
First aid injuries
STANDARD RULE 1: Apply to both YES & NO above – post accident drug test on single event injuries where a reasonable suspicion exists that – the use of drugs could have played a role in the accident.
STANDARD RULE 2: Drug testing methodology should focus on “recent drug use” – i.e. 24 to 48 hours.
STANDARD RULE 3: Perform the drug test as soon as possible after the injury – same day.
STANDARD RULE 4: Never terminate an employee testing “non-negative” or positive for a first time violation be it Post Accident, Random, or Cause/Suspicion. Refer to our Written Drug & Alcohol Program Word Document (page 19) using the “immediate Suspension without pay” letter directing the employee to seek treatment sending it by certified and regular mail within 5 days of receiving the “chain of custody” test results. Contact our office if you have questions regarding this protocol.
NOTE 1: The above – DO NOT DRUG TEST INJURY TYPES – does not apply in “Drug Free Workplace” states (i.e. Georgia) where all forms of drug testing are required within the DFWP mandate or – permitted even if no Certified Drug Free Workplace program is in place.
NOTE 2: States having legalized medical marijuana do not change, alter or affect the above YES and/or NO testing guidelines.
NOTE 3: Employer fines are said to range from $12,000 to $125,000 with no released formula regarding how these fines will be calculated or assessed. By always deferring to a “suspending without pay” response directing the employee to a community drug treatment center (per our policy) fine mitigation or even elimination will be the likely outcome – the goal is to not punish an employee with a problem.
OSHA COMMENTS ON THIS RULING
While this testing restriction does not appear in the text of this final rule, it does appear in OSHA’s interpretation of the provision prohibiting employers from retaliating against employees who report a work-related injury or illness:
“OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident 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.… Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”
SUMMARY
We are taking a guarded position on this change leaving the call to your best judgment accepting that mandatory & enforceable rule (interpretations) changes such as this are contradictory to the intent of why unfettered workplace drug testing has always been and remains the right thing to do as every employer has a legal obligation to provide a safe and healthful workplace under OSHA’s “General Duty Clause” (Section 5(a) and 29 CFR 1903.1).
To review current laws in your state on Employer Drug & Alcohol Testing visit this link: http://www.testcountry.com/StateLaws/
To review this information on our website, please visit this link: https://www.insuredsolutions.net/clients.php