Post Incident Drug Testing Issue: The Language From The Standard

From The MCAA-Pete Chaney

“Employers are prohibited from discharging, or discriminating against any worker for reporting a work-related injury or illness” The OSHA final rule does not ban drug testing of employees. However the final rule does prohibit employers from using the drug testing (or threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-accident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. The language in employers’ written substance abuse polices will have to be changed to state that post -incident testing will not be performed automatically after every incident, but that it will be performed whenever the supervisor in charge believes that drug use was likely to have caused the incident. That call is course highly ┬ásubjected. A savvy supervisor could choose to make the call for post-incident testing every time an incident occurs. However, that doesn’t solve a new problem with most state’s worker’s compensation systems. In most states if an injured worker is under the influence of one or more drugs the WC claim is significantly reduced or negated. OSHA’s new rule changes all of that. Pete C. stated that he believes that many employers are likely to risk the slim chance of receiving an OSHA
citation & fine, which would be much more less costly than a WC claim and increased future WC rates. MCAA is seeking clarification on language in the preamble that exempts certain mandated post-incident drug tests from the requirements in the standard. We’ll share the clarification with you as soon as we receive it.

Bess Cochran, COSS
MCA Director of Safety & Health
419-666-6900 ext. 3