OSHA has set its sights on post-accident drug tests! Although OSHA’s new electronic reporting rule doesn’t start until January 1, 2017, some aspects have already gone into effect this month.
If your company routinely conducts drug tests after employees have on-the-job injuries, you’re about to land in some very hot water!
Post-accident drug tests & adverse acts:
Under the new rules, OSHA views post-accident drug tests as an adverse act on the part of an employer to discourage employees from reporting their injuries.
OSHA doesn’t explicitly prohibit post-accident drug tests, but under the new rules, OSHA advises that testing should be limited to situations in which:
- The employer has reasonable cause to believe that drug use contributed to the incident
- There is a drug test that can accurately identify impairment from the drug use.
A blanket policy requiring drug testing may cause an employer to be cited by OSHA for taking an adverse action.
OSHA can now cite employers even if an employee hasn’t made a complaint:
The new rule also allows OSHA to cite employers, regardless of whether an employee has actually made a complaint.
OSHA says it was necessary to grant themselves this new authority, in order to protect employees who are intimidated from asserting their rights due to the practices and policies of their employer.
So, even if your employees don’t believe they were intimidated by you, OSHA will fine you if they think your policies might have intimidated workers!
Informing employees about their rights:
Companies must now also proactively inform their employees that they have a right to report a work-related injury or illness without being retaliated against.
It’s already against the law for companies to retaliate or discriminate against an employee for this. What’s new here is that you must inform your employees of their rights.
You can inform employees by:
- Posting OSHA’s “It’s the Law” poster, which you can download for free
- Including this information in your Employee Handbook or Safety Plan that is given to your employees.
Safety incentive programs:
Safety incentive programs also get a mention in the new rules. OSHA reemphasizes their belief that incentive programs must focus on safety rather than work-related injuries.
For example, bonuses given for having no work-related injuries during the quarter would be a violation, because OSHA sees this as discouraging employees from reporting injuries. But it’s fine to give bonuses to employees for not violating safety rules during the quarter.
Postponement of new rules’ effective date:
As I write this article, OSHA has postponed the effective date of these rules to November 1st to give employers more time to understand the new regulations, and for OSHA to develop educational and enforcement materials.
This is probably a good thing, since the post accident drug testing information from Washington State’s Department of Labor & Industries provides says that, “All employers should require drug and alcohol testing after a major work accident.”
Obviously, all regulators are not on the same page yet!