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Effective August 10, 2017, OSHA’s final rules on electronic reporting of workplace injuries require employers to implement a “reasonable procedure” for employees to report workplace injuries, and that the procedure cannot deter or discourage employees from reporting a workplace injury.
OSHA’s May 12, 2016 commentary specifies that the agency views mandatory post-accident drug testing as a deterrent to the reporting of workplace incidents. OSHA’s commentary with regard to drug testing notes, “Drug testing of employees is often perceived as an invasion of privacy, so if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employees to be drug tested may deter reporting.” In order to drug test, there should be a reasonable possibility that use by the reporting employee was a contributing factor to the reported injury.
The main takeaway from these new rules is that employers cannot automatically drug test everyone who gets a workers’ compensation injury as of August 1st, 2017. Employers who do not comply with these new rules will face serious penalties, especially since OSHA has implemented increases that permit maximum penalties to over $12,000 per violation and over $120,000 for willful or repeat violations.
If you wish to implement or continue a current drug testing program, we strongly recommend that you consult the services of a state-specific labor attorney.
Jordan Markuson, Assistant Vice President