Effective December 1st, 2016, OSHA put a new rule into effect regarding Post-Accident Drug Testing (PADT). Their new “Anti-Retaliation” provisions (29 CFR 1904.35(b)(1)(iv)) may affect your business. The provision has been challenged in court and delayed multiple times, but is now in effect. Below are links to OSHA’s rule and a memo of explanation. We encourage any client that has or is considering implementing a drug testing program to review them.
- OSHA’s anti-retaliation provisions of the Final Recordkeeping Rule
- OSHA’s memo regarding interpretation of the anti-retaliation provisions
Anti-Retaliation
PADT programs will continue to be a business tool to determine the root cause of a workplace injury. However, OSHA’s recent provisions are aimed to ensure employees don’t hesitate to report a workplace injury out of fear of being required to take a PADT. Below are some of the main questions our clients have posed:
When should I use a PADT for a work-related accident?
- To determine the root cause of the accident, unless the facts indicate drug use did not play a role. For example, suppose your employee has operated the same piece of machinery for 20 years and now shows signs of carpal tunnel. Since drug use could not have caused this injury, it would not be appropriate to require a PADT. However, suppose the same employee was suddenly injured on the equipment for not following proper safety procedures. Since impairment could have been a factor, a PADT should be administered to investigate the root cause.
- If required to comply with state and federal laws and/or contracts. For example, certain Department of Transportation regulations require them.
- If your business participates in your state’s drug-free workplace program and is receiving this discount on their workers’ compensation policy.
Can I require a drug test for an employee that was involved in an accident but not injured?
Yes. A PADT program is key to determining the cause of an accident so that operations can be modified if necessary. For example, suppose an employee accidentally dumps the load of a pallet jack while loading a truck, but is not injured. Since drug use could have been a factor, a PADT would be in order.
Please note that if testing for alcohol, the PADT program must use currently available technology to determine if the employee was under the influence at the time of the accident. This can be testing by breathalyzer, blood-alcohol content, or similar. For all other drugs, a urine-based drug screen is acceptable under the new OSHA rule.
More Information and Sample Policies
- Sample Post Accident Drug and Alcohol Screening Policy
- Sample Drug Free Workplace Policy
- Employers’ Guide to Incident Investigations
Hurry Up and Wait
Although the new anti-retaliation rule applies now, it may be advisable for employers to adopt a “Wait and See” stance before making changes to their current drug testing policies. It is still uncertain how OSHA will enforce the rule and there are doubts as to whether the new presidential administration’s secretary of labor will keep it. We advise our clients to familiarize themselves with the ruling and stay abreast of developments.
Contact Us for more information. Each one of our clients is assigned a personal agent in our office.
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