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OSHA Compliance: Be Sure to Dust Off Your Post-Accident Drug Testing Policy

On December 1, 2016, the Occupational Health and Safety Administration’s (“OSHA”) began enforcement of a new rule that directly impacts employer’s post-accident drug testing policies. The purpose of the new rule, according to OSHA, is to promote “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.”

To effectuate this new goal, OSHA now requires employers to “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” Further, OSHA states that a policy is not reasonable if it would “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”

What is the connection to post-accident drug testing? The rule itself does not address post-accident drug testing. However, the comments after the rule state that OSHA believes that “blanket post-accident drug testing policies deter reporting” based on studies and record keeping data. Under the new rule, there must be “a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness” before the employer can mandate that the employee be drug tested.

At Stock and Leader, we advise clients on the following key points:

  • Review your post-accident drug testing policies to ensure compliance with OSHA’s new rule
  • Develop policies and procedures to facilitate proper reporting including post-accident interviews
  • Designate “point person(s)” to receive training on evaluating employee symptoms, conditions, and behaviors indicative of impairment
  • Develop a working list of conditions, symptoms or behavior that can be “checked” if an employee exhibits these symptoms, conditions or behaviors at the time of or immediately following the accident
  • If you suspect the employee was impaired at the time of the accident, send the employee for post-accident drug testing

For further information, click here to be directed to the Federal Register which provides the full rule and discussion as set forth in 29 C.F.R. §1904.35.

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