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As an employer, your number one goal is to be committed to protecting the safety and well-being of all employees in the workplace. Drug abuse poses a significant threat towards that goal. For this reason, it is vital to establish a drug-free workplace and drug testing policy that balances the respect of individuals with the need to maintain an alcohol and drug-free environment. Under the General Duty Clause, OSHA Act of 1970: employees must provide “their employees with a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Employers can be cited for General Duty Clause violation if recognized serious hazards exist and employer fails to take the necessary steps to prevent or correct the situation. Also, employer knowledge of an employee substance use in a safety-sensitive situations could be grounds for the General Duty Clause.
Common drug testing situations include pre-hire, random, reasonable suspicion, post-incident, and follow-up/return-to-duty. Only post-incident drug testing has potential for OSHA retaliation citations under 29 CFR 1904. Under OSHA law, you must establish a reasonable procedure for employees to report work-related injuries promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness. You cannot use drug testing (or threat of testing) as a form of adverse action against employees who report injuries/illnesses.
Safety Hazards of substance use include risk of accident of injuries, driving vehicles (commuting or work-related), operating machinery/ equipment, and critical errors (judgment, focus, etc.)
|Employee error (e.g. forklift, machinery, crane) could have caused the accident||
No way substance use could have caused incident (e.g. repetitive strain injury, bee sting)
- Consider ability of test to measure impairment at the time of incident
- Cannot test in an “unnecessarily punitive manner” – Example: anything intended to embarrass employee
- Burden on employers to hypothesize about root cause
- Will testing to identify incident causes contribute to workplace safety?
When is post-accident drug testing allowed without a reasonable determination?
- Federal regulations (such as DOT)
- Drug-Free Workplace Statutes/Workers’ Compensation laws
- Insurance carrier offers
Drug Free Workplace Statutes
- If state Workers’ Compensation law allows or mandates post-accident drug testing, employer may continue to require automatic drug testing.
- May offer a reduction in their insurance premiums if drug testing policies are adopted
- Provisions differ state to state
- Testing allowed even if drug-free workplace is voluntary.
Best Practices for Compliance
- Make accidents trigger drug testing, not injuries.
- Avoid testing everyone involved in an accident by focusing on those that caused or contributed.
- Make sure a drug test can accurately identify impairment at the time of the incident.
- Train supervisors and managers on establishing reasonable suspicion and establish a policy that they consult with HR, legal counsel or EHS department before ordering a post-accident drug test.
- Document procedures and rationale for testing.
- Consider relationship of drug/alcohol use and safety considerations.
- Could a drug test help identify the root cause of an incident? Will it contribute to a safer workplace?
- Communicate the policy clearly to employees and supervisors.
- Apply all policies consistently.
Do you need assistance implementing a drug test at your organization? Contact The Safegard Group.