Is the “Cure” Worse Than the “Disease?” The Impact of New OSHA Regulations on Drug Testing

Authored by Robert S. Seigel

Jun 17, 2016

New regulations issued last month by the Occupational Safety and Health Administration (OSHA) purport to encourage employees to report work-related accidents and injuries by affording them greater protection from potential retaliation by their employer. OSHA concluded that employer substance abuse policies requiring employees to be tested for drugs after experiencing a work-related accident or injury discourage employees from reporting accidents and injuries. In response to this concern, the new regulations create restrictions on an employer’s right to administer post-accident or injury drug tests. However, by attempting to solve this problem, OSHA may have created a bigger one.

The restrictions adopted by OSHA now prohibit an employer from ordering post-accident or injury drug testing unless the employer can demonstrate that: (1) employee drug use is “likely to have contributed to the incident;” and (2) the situation is one in which a drug test “can accurately identify impairment caused by drug use.” The regulation illustrates how this test might be applied by providing three examples of situations in which an employer likely would not be justified in administering a drug test: a bee sting; a repetitive strain injury; or an injury caused by lack of a machine guard or by equipment malfunction.

As a practical matter, the impact of this new regulation is to prohibit employers from using a simple non-discriminatory approach to the problem of impairment caused by on the job drug use leading to accident or injuries. Instead of simply testing everyone who experiences a work-related accident or injury, an employer must now attempt to determine, often within a very short time frame, whether use of a particular drug could cause the type of impairment that, in turn, could have caused the accident or injury. OSHA does not explain how it expects an employer to acquire sufficient expertise to correctly make that judgement; but it does make the employer responsible for being wrong.

Since post-accident or injury drug testing has become something of a standard policy in human resource management, the new regulation has far-reaching consequences. The regulations allow an exception if state workers’ compensation law requires post-accident or injury testing; but otherwise an employer tests at its peril. Although it is not yet clear how OSHA will administer this new regulation, the attorneys at Lowenbaum Law are available to assist you in determining your company’s best response to this new challenge.

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