The
Occupational Safety and Health Administration (OSHA) has
issued new rules revising its requirements for recording and submitting records
of workplace injuries and illnesses. The revised rules require employers in certain
industries to submit injury and illness data electronically. The frequency and
content of the reports depend on the size and industry of the employer. The
final rules also include provisions that encourage workers to report
work-related illnesses and injuries and prohibit employers from retaliating
against employees who make such reports.
Employers
must inform employees by August 10, 2016, about the prohibition on retaliation
for reporting injuries and illnesses. Moreover, you must establish a
procedure for employees to report work-related injuries and illnesses that is
“reasonable” and doesn’t deter or discourage them from making reports.
Granted
this is pretty dry stuff. However, if you currently have a blanket rule
requiring employees to submit to mandatory drug testing after an accident or
injury, regardless of the cause of the accident, the amount of damage, or the
significance of the injury, read on. OSHA considers such policies to be a form
of adverse action that can deter employees from reporting of an injury or
illness.
Drug
use must be a likely factor
OSHA’s comments on the final rule are instructive:
Although
drug testing of employees may be a reasonable workplace policy in some
situations, it is often perceived as an invasion of privacy, so if an injury or
illness is very unlikely to have been caused by employee drug use, or if the
method of drug testing does not identify impairment but only use at some time
in the recent past, requiring the employee to be drug tested may
inappropriately deter reporting.
While
OSHA claims its goal is not to ban drug testing of employees, it has affirmed
its position that to survive a challenge (and a potential citation and hefty
penalty), postincident drug testing must be restricted to situations in which
employee drug use is likely to have contributed to the accident and the drug
test can accurately identify whether the worker was impaired by drug use at the
time of the incident. The agency provides the following examples to support its
position on limited drug testing:
For
example, it would likely not be reasonable to drug test an employee who reports
a bee sting, a repetitive strain injury, or an injury caused by a lack of
machine guarding or a machine or tool malfunction. Such a policy is likely only
to deter reporting without contributing to the employer’s understanding of why
the injury occurred, or in any other way contributing to workplace safety.
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.
Takeaway
Be advised that if you have a blanket policy that requires drug testing after any workplace accident or incident, OSHA considers it a form of adverse action that could deter employees from reporting injuries and illnesses. Even if you revise your policy to limit drug testing to situations in which the employee’s actions (or inaction) could have caused or contributed to the accident, you must establish that the drug test can accurately identify whether the employee was impaired by drug use at the time of the incident.
If
you drug test employees pursuant to a state or federal law or regulation, you
should be safe. OSHA acknowledges that conducting drug testing to comply with
the requirements of a state or federal law or regulation—for example, workers’
compensation rules or U.S. Department of Transportation (DOT) regulations—isn’t
a violation of the rule because the employer’s motive in testing isn’t
retaliatory.
There’s
no reason to stop postaccident drug testing. The limitations on such testing
are found in the commentary to the rules, and the new rules will likely face
legal challenges. However, any policy language calling for “blanket” drug
testing should probably be discarded in favor of language stating that testing
will be done when an employee’s action (or inaction) is suspected of causing or
contributing to the accident. Given OSHA’s comments about determining whether
an employee was impaired at the time of the incident, time is also a factor in
evaluating a drug-testing policy. Remember, testing that complies with state or
federal laws or regulations isn’t considered a violation of the rules. That
said, if you haven’t reviewed your drug-testing policy recently, now would be
the time to do so.
Source: HR
Hero
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