Post-Injury Drug Testing

All employers should have policies in place when it comes to procedures after an employee is injured. Many employers take the step of also having particular procedures in place for drug testing employees after they sustain a work-related injury. In light of new rules from the United States Occupational Safety and Health Administration (OSHA), employers may need to re-examine and re-evaluate the rules they have in place.

In May 2016, OSHA propagated a rule that prohibits employers from using drug tests, or the threat of drug tests, as adverse action against injured employees. This rule took effect on January 1, 2017. This rule states that employers are no longer permitted to have a blanket requirement for every injured employee to submit to drug testing. Instead, the rule is now that drug testing should be limited to injuries where employee drug use is likely to have contributed to the accident or injury and “for which the drug test can accurately identify impairment caused by drug use.”  For example, if an employee contracts carpel tunnel syndrome from repetitive movement, it is unlikely that drug use would have caused or contributed to this injury. Under the OSHA rules, it would be inappropriate to drug test such an employee after the employee reported the work-related injury. It should be noted that the rule does not require that the employer specifically suspects that drug use was involved; there should be a reasonable possibility that drug use contributed to the injury. The policy reason behind this rule is that OSHA is of the opinion that blanket drug-testing requirements post-injury reporting is a deterrent to workers otherwise reporting their injuries.

The rule has received criticism from some employers. The most obvious argument against such a rule is that the interest in preventing an injury to other workers or to the public at large from an intoxicated worker should outweigh the concern that a worker may be deterred from reporting a work-related injury. Employers also complain that OSHA instituted this rule without sufficient evidence that drug-testing policies actually created any deterrent effect.

For employers, this means that it is now necessary to review their drug-testing policies and make sure they are in compliance with the new rules. As it is now past January 1, 2017, this review needs to be conducted immediately, if it has not already been accomplished.

If you are an employer and have questions about drug-testing policies, call me today at (714) 516-8188. We can discuss your business and whether the policies in place are in compliance with current rules and laws.

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