Employee drug use is on the rise, particularly
marijuana and opioids, and there is a demon-
strated, statistical link between employee
drug use and increased potential for work-
place accidents.
Given these safety statistics and the evidence of rising
drug use, some employers may decide to tighten up their
testing programs and become more serious about post-accident
testing as a deterrent to illegal drug use. Not so fast! The federal
Occupational Safety and Health Administration (OSHA) has a
different idea and has come out with a position that may seem
contrary to common sense. Although OSHA’s new rules, which
were issued last year and went into effect Dec. 1, 2016, after a
delay, do not specifically prohibit post-accident drug testing,
OSHA’s comments on the rules reflected OSHA’s hostility to
blanket post-accident testing. Instead, OSHA believes that such
testing deters the reporting of accidents, which the new rule is
intended to prohibit. According to OSHA:
“Although drug testing of employees may be a reasonable
workplace policy in some situations, it is often perceived as an
invasion of privacy, so if an injury or illness is very unlikely to
have been caused by employee drug use, or if the method of drug
testing does not identify impairment but only use at some time
in the recent past, requiring the employee to be drug tested may
inappropriately deter reporting.”
OSHA then goes on to state that post-accident testing is
appropriate to comply with state or federal law or if it is limited
just to those situations in which employee drug use is likely
to have contributed to the incident and for which the test can
accurately identify impairment caused by drug use and not
merely drug use in the past. (This latter requirement has since
been clarified to apply only when such tests are available.) States
that have their own equivalent of OSHA are generally expected
to adopt similar rules in the coming months.
So where does this leave you as an employer? Employee
drug use is on the rise, particularly marijuana and opioids, and
there is a demonstrated, statistical link between employee drug
use and increased potential for workplace accidents. B