OSHA Ruling Brings Changes to Post-Incident Drug and Alcohol Testing Boundaries

Why the changes?
The changes were put in place to address OSHA concerns regarding possible negative consequences of blanket or automatic post-incident drug tests. Some of the concerns include:

• Underreporting of workplace injuries. Employees may choose not to report a workplace injury because they do not want to participate in post-incident drug tests.
• Employer retaliation. Employers who are upset because of a workplace injury claim may use the post-incident drug test results as retaliation against the injured employee.

What do the changes include?
Some key points for employers to be aware of are:

• Employers must provide a reasonable procedure for employees to report work-related injuries and illnesses. This reporting procedure must not deter or discourage an employee from reporting a workplace injury or illness.
• Employer blanket or automatic post-accident testing policies are prohibited.
• The new rules do not prohibit all post-incident drug testing. The changes prohibit employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing.
• When requiring post-accident drug testing, there should be a reasonable possibility that substance use was a contributing factor to the employee’s injury or illness. Testing should be limited to the employee responsible for the incident, not everyone involved.

When not to test
Examples of when there is not a reasonable possibility that an injury or illness occurred as a result of drug impairment include:

• bee stings,
• repetitive strains,
• lack of machine guarding, or
• machine or tool malfunctions.

Missouri Employers Mutual offers additional drugs and alcohol in the workplace resources including a sample policy.


Source: Missouri Employers Mutual: Expert Insights