OSHA’s new anti-retaliation Final Rule becomes effective today. Under this new Rule, a covered employer cannot automatically drug test an employee after an accident involving an injury, as doing so would discourage the reporting of on-the-job injuries. Read our earlier article to learn more about the new Rule.
OSHA has already issued interpretive guidance clarifying how the new Rule will be enforced. First, OSHA will use a four-part test to evaluate whether post-accident testing is reasonable:
- Is there a reasonable basis for concluding that drug use could have contributed to the accident giving rise to the injury?
- Were other employees involved in the accident tested?
- Did the employer only test the person who reported the injury and not the other persons involved in the accident?
- Does the employer have a “heightened interest” in determining if drug use caused the accident?
Second, contrary to what was stated in the original commentary to the Final Rule, OSHA admits there is no current test that enables an employer to determine if a person is impaired by a drug. By implication, OSHA is admitting that the lack of an ability to test for drug-induced impairment will not prevent an employer from using a drug test to determine if a person is merely positive for the presence of drugs in his system.
And third, OSHA provided a helpful example of the proper way to drug test:
Consider the example of a crane accident that injures several employees working nearby but not the operator. The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in a safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of the drug testing could provide the employer insight on the root causes of the incident. However, if the employer only tested the injured employees but did not test the operator or other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate section 1904.35(b)(1)(iv).
Although not stated explicitly in this example, it is quite clear that OSHA would expect the employer to drug test the maintenance personnel who inspected or otherwise worked on this crane, in addition to the crane operator and the workers directly affected by the crane accident.
Remember, this new Rule only applies to covered employers. Some eighty-two categories of employers are not covered by this Rule, including retail establishments, information technology service providers, financial institutions, educational institutions, certain healthcare providers, restaurants, and various non-profit organizations.
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