In August 2016, the new Occupational Safety and Health Administration (OSHA) rules concerning anti-retaliation and anti-discrimination in the workplace went into effect, but the enforcement of the provisions was delayed until Dec. 1. Among the topics covered by the new mandates is a tightening of the circumstances under which an administrator can order an employee to undergo a drug test.
The new rules place stricter limits on drug testing after incidents, and many organizations may find that their policies and training manuals will need to be revised because of the new rules, said Steve Wilder, President and COO of Sorensen, Wilder and Associates, a workplace safety and risk management consultancy headquartered in Bourbonnais, Illinois.
“We’re all used to doing drug testing after any kind of workplace accident. That’s now going to get you in trouble with OSHA,” Wilder said in a recent IASC webinar on the rule changes.
The OSHA rules instruct employers to “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” In other words, an administrator cannot require a drug test following an incident or injury that has no reasonable connection to drug use, such as an accident caused by faulty machinery or an injury from slipping on a wet floor.
“You have to have reasonable cause that drug impairment could have been a factor in the event, and you’d better be able to document it,” Wilder says.
To comply with OSHA’s interpretation of its new regulation, employers could amend their post-accident drug-testing policy to provide for potential drug and alcohol testing—rather than mandatory testing. Then make sure all employees are informed of the policy changes, the new OSHA rules, and use of drug testing whenever there is a reasonable basis to believe alcohol or drug use played a role in the accident or event.
When no incident or event is at large, random drug testing is still acceptable. However, organizations will need to take care to ensure that the testing is truly random, lest an employee seek a retaliation claim, Wilder adds.