New Osha Rule: Impact on Automatic Post-Accident Testing

Suffering an injury from a workplace accident is bad enough, but being forced to take a drug test afterward can add insult to injury. The process is not new; it began in the late 1980s in response to tragic accidents at rail yards.

Even then, the practice was criticized. In fact, it was even challenged in the highest court in the nation. Ultimately, the Supreme Court of the United States supported the practice, noting that the "deterrent impact of post-accident testing had an acceptable purpose." At that time, it was believed that the benefit of deterring drug use was more important than the risk of employees choosing not to report accidents for fear of failing a drug test.

This practice is scheduled to change this summer. The Occupational Safety and Health Administration (OSHA) have revised its Recording and Reporting of Occupational Injuries and Illnesses regulations. These revisions impact a number of practices, including the use of automatic post-accident testing.

What was changed?

The applicable language of the rule states that employers are prohibited from:

[U]sing drug testing (or the 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-incident 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 rule then goes on to provide some examples where a drug test would be inappropriate, such as a bee sting or an injury that resulted from an accident caused by a lack of machine guarding.

How will this change impact workers?

The change is scheduled to go into effect on August 10, 2016. Legal professionals expect a court challenge is likely as this portion of the rule fails to address what employers will argue are drug deterrent benefits of these tests. In the meantime, employers that require workers to take such tests will likely expose themselves to violation citations from OSHA.