OSHA’s Warning to Employers Makes Post-Accident Drug Testing More Complicated
Many industrial employers have policies that require employees to take a drug test whenever they have been involved in an on-the-job accident which causes — or, in some cases, could have caused — a fatality, a serious injury, or significant property damage. You would think that these policies would be uncontroversial, given how important determining the cause of workplace accidents is to preventing future ones. Because we are in the midst of an opioid-addiction epidemic of historic proportions which has affected blue collar workers more than others, no reasonable employer can afford to disregard the possibility that drug use may have been a factor in a workplace accident. To allow an impaired employee to continue working is simply irresponsible.
OSHA apparently thinks differently. The new recordkeeping and reporting regulations that went into effect last month contain a requirement that employers “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately,” and go on to state that a procedure would not be “reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness….” Although the regulation itself doesn’t address the issue, OSHA noted in comments to the regulation that employers that require drug tests for employees involved in accidents could be violating this rule because, according to OSHA, broad drug testing after an incident might deter people from reporting it.
Should employers completely get rid of post-accident drug testing? As an employment and safety lawyer who often defends employers in lawsuits and administrative hearings, I would argue no. However, I do believe that that there may be situations where testing is not warranted because there is no question that drug use could have caused the injury. Consider, for example, the employee who reports being stung by a bee or where it is clear that the injured employee was an innocent bystander, where potential drug use is totally irrelevant to the injury. On the other hand, if an employer has a “reasonable suspicion” that the employee who caused the accident was under the influence of drugs, that would certainly justify testing, and it is unlikely that OSHA would object. OSHA has even suggested that a lesser standard might suffice: “Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.” At a minimum, employers may want to modify their drug testing policies to provide for post-accident testing if there is “a reasonable possibility that drug use by the reporting employee was a contributing factor.”
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.