Historically, it has not been unusual for employers to have policies requiring workers to undergo drug or alcohol testing after a workplace accident. But now, with the passage of a new reporting rule by the Occupational Safety & Health Administration (OSHA), employers are going to need to be much more cautious about this practice. Blanket policies that require each and every employee to be tested for drugs or alcohol may discourage reporting of workplace accidents, and thus would not be acceptable under the new policy.
The new OSHA rule on electronic reporting of workplace injuries and illnesses doesn’t actually make any direct mention of drug testing workers post-injury, but occupational experts who have been studying the rule (which goes into effect August 10, 2016) have largely concluded that the policy doesn’t allow the kind of broad-based drug testing that’s often done after an occupational accident. There are also some who have argued that by doing this, OSHA is undercutting worker safety. Workers will know they can’t be tested for drugs or alcohol after an accident, and they’ll be more likely to imbibe.
But that’s not exactly what OSHA has said.
In fact, in a recent OSHA FAQ on the new rule, the agency addressed the issue. Prompted with the question of whether an employer can require post-incident drug testing for a worker who reports a work-related injury or illness, the agency responded:
The rule does NOT prohibit a company’s drug testing of employees. What it DOES prohibit is employers using drug testing – or the threat of drug testing – as a kind of retaliation against a worker who reports a workplace injury or illness. Drug tests have to be conducted in a way that complies with state and federal laws, and the tests can’t be retaliatory.
What does that mean, exactly? Basically, an employer is probably going to need a good reason to suspect the work-related accident was the result of the worker being under the influence of drugs and/or alcohol.
The agency notes that while drug testing of employers can be seen as a reasonable workplace policy in some situations, it’s also sometimes viewed as an invasion of privacy. So in cases where a worker’s injury or illness is probably very unlikely to have been caused by an employee’s drug use or if the way that the testing is conducted isn’t likely to detect any impairment at the time of the accident, it’s probably not going to meet the new standards.
For example, let’s say a drug company insists on drug testing with the suspicion the worker may have been under the influence of marijuana. The problem is, there is no scientifically accepted test that verifies marijuana intoxication. The active ingredient, THC, stays in the system for weeks, which means it’s not going to tell the employer whether the worker was impaired, only that he or she had used the drug in recent weeks.
Similarly, if the employer suspects the worker may have been under the influence of alcohol, but initiates a test three days after the fact, that won’t pass muster because alcohol is processed through the body for quickly.
Finally, if the employer has no real reason to suspect the worker was under the influence of drugs or alcohol but forces testing anyway, this could be seen as retaliatory for reporting an injury.
An employee who is found to be under the influence of alcohol or drugs on the job might not only lose that job, they could lose their right to collect workers’ compensation benefits if that substance played an integral role in the injury.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
More Blog Entries:
Long v. Injured Workers’ Ins. Fund – Calculating Average Weekly Wage of Self Employers for Workers’ Comp, July 7, 2016, North Carolina Workers’ Compensation Lawyer Blog