For years, many employers have automatically required drug testing of an employee involved in any work-related accident. The fact that an accident occurred was justification for the testing, without regard to whether any suspected drug or alcohol use contributed to the accident, and regardless of the severity of the injury or damage.
Some states have placed limitations on this practice. For example, in the 2013 California decision resulting from Freeman v Kohl’s, it was found that such a policy of automatic testing was overbroad and invaded privacy rights of employees. It held that an employer’s post-accident policy that requires drug testing in the event of any reported work-related injury, regardless of the extent of any damage, the extent of the injury, and whether the claimant bears any responsibility for incurring the injury, is invalid.
There is now a new and national directive that affects virtually all employers who maintain and implement such a policy. In August of 2016, the Federal Occupational Health and Safety Administration (OSHA) issued its final rule on electronic reporting of workplace injuries. Among other things, this rule found that the use of this broad policy after any workplace injury may deter reporting of such injuries and concludes that 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.
According to OSHA, examples of unreasonable use of the test would include a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.
As a result of this new order, there is an increased, but significant risk in continuing the practice of conducting an automatic drug test after any work related accident. There are significant fines that will be imposed for use of these policies that deter reporting of workplace injuries — and there is also the possibility of facing claims of invasion of privacy from affected employees.
In light of this new rule, drug testing policies must be reviewed and modified to ensure that post-accident drug testing is performed in a fashion consistent with OSHA’s mandates.
