Time is now to review your drug testing policy

OSHA’s Nov. 1 start date for enforcing its new record-keeping rule is drawing close, and employers need to pay particular attention to their drug testing policy related to workplace accidents.

The new rule makes it clear that employers who have a blanket policy of conducting drug testing in the wake of accidents will be subject to OSHA scrutiny. The agency’s rationale is that some types of accidents are very unlikely to have been caused by drug use, and that employees fearful of retaliation for a positive drug test may be reluctant to report injuries.

If OSHA finds that a drug testing policy deters employees from reporting injuries and illnesses, the penalty may be up to $12,471 per violation, and up to $124,709 if the agency finds the violations are willful or repeated.

The record-keeping rule is being challenged in court by the National Association of Manufacturers, but in the meantime employers would be well-advised to review their drug testing policy.

In a National Law Review article about the rule, the law firm of Much Shelist says, “Post-accident drug testing might be advisable only in those instances where it appears that drug use caused or contributed to the accident and where the test used can establish impairment. Employers may well have cause to stand by a blanket policy, but if such a position is taken, the employer should document the rationale for keeping the policy in light of this new rule.”