Complete Story
09/21/2016
Will Post-Accident Drug Testing Still Be Allowed?
Source: Fisher Phillips, On the Front Lines newsletter, August 2016
When the Occupational Safety and Health Administration (OSHA) announced its May 2016 Electronic Recordkeeping Rule, most employers focused on the Rule’s increased reporting requirements and the imminent public posting of injury information to the agency’s website. But the agency also indicated that, once the Rule becomes effective, it could be considered a violation of the law for employers to automatically conduct post-accident drug testing of injured employees.
Because many employers have mandatory post-accident drug-testing systems in place, this interpretation has resulted in a lot of speculation and justifiable criticism. While there is a chance that portions of the Rule might be shelved before its effective date, employers would be wise to prepare for a new reality which could come as early as later this year.
New OSHA Rule Garnered Significant Attention
The main thrust of OSHA’s Electronic Recordkeeping Rule deals with a phased-in requirement that many employers electronically report their workplace injury data beginning in January 2017. However, the Rule also requires employers to establish a reasonable procedure for reporting work-related injuries and illnesses promptly and accurately, and notes that a procedure is not “reasonable” if it would “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
Two Manageable Changes
OSHA interpreted this seemingly innocuous requirement to conclude that employers might violate the law if they take certain routine actions that are fairly typical in the modern workplace. For example, the agency said that establishing incentive programs which reward employees for experiencing no recordable workplace injuries and illnesses could violate the law.
