If you’re an employer with a blanket policy to conduct post-accident drug and alcohol testing on employees, it may be time to review your procedures.
The Occupational Safety and Health Administration recently published guidance on this issue, making it clear that there must be a reasonable basis for conducting such testing — and stating that it shouldn’t be used as a disciplinary measure against employees reporting an injury or illness.
“OSHA is going to be scrutinizing employers’ post-accident drug and alcohol testing policies and practices as a result of this,” says Kathryn Russo of Jackson Lewis P.C. Russo, a practice leader in the firm’s drug testing and substance abuse management group, who works out of the national law firm’s Melville office.
In October, OSHA published a memorandum detailing its stance on post-accident drug and alcohol testing. The memo explained earlier commentary from the agency about a new electronic record-keeping rule published in May, Russo says. The rule requires some employers to report injury and illness information electronically, and prohibits retaliation against employees who report workplace injuries and illnesses, she says.
Before this, there wasn’t any formal OSHA guidance on post-accident drug and alcohol testing, Russo says.
The new memo makes it clear that employers may conduct post-incident drug testing, but should do so only when there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness, Department of Labor spokeswoman Mandy Kraft said in an email.
Drug testing an employee whose injury could not possibly have been caused by drug use would likely be a violation. For example, drug testing an employee for reporting a repetitive strain injury would likely not be reasonable because drug use could not have contributed to the injury, the guidance says.
The new document is meant to explain “how the long-standing prohibition on retaliating against employees for reporting work-related injuries could apply to post-injury drug testing,” Kraft says.
OSHA addressed the issue to respond to concerns that the new electronic reporting requirements “could create increased incentives for employers to deter or discourage employees from reporting work-related injuries and illnesses through retaliation, including retaliatory drug testing,” she says.
Employers should make sure they are not imposing a blanket post-accident drug testing policy, unless such blanket testing is required of them under federal or state law, says Thomas J. Bianco, a partner in Mineola-based Meltzer, Lippe, Goldstein & Breitstone LLP’s labor and employment law practice group.
They should be prepared, if questioned, to justify why the company picked that employee to be drug tested, he says. It should be based on objective evidence, such as conduct by the employee that led the firm to believe drug and alcohol use likely contributed to the accident, Bianco, a certified OSHA instructor, says.
Document any employee behavior or actions that led you to have a reasonable suspicion that drug or alcohol use was involved, he says.
But everyone can interpret “reasonable” differently, says Charles Hunt, chief operating officer of Massapequa Park-based Able Safety Consulting LLC, which provides OSHA compliance assistance.
He advises employers to use OSHA’s recommendation as guidance when creating their health and safety plans, but Hunt questions whether employers will be grappling with the electronic recordkeeping rule in the coming year.
“It could possibly be repealed under the new administration because businesses find it burdensome,” Hunt says.
Questions to ask
1. Did the employee cause or contribute to the accident?
2. Is there a reasonable possibility that drugs or alcohol could have contributed? (Exclude accidents such as animal bites, slips on ice, carpal tunnel syndrome, pulled muscles from lifting heavy objects.)
3. Did the incident require immediate medical attention beyond first aid or cause significant property damage?
Source: Kathryn Russo of Jackson Lewis P.C.