After some workplace accidents, employers want to conduct a post-incident drug or alcohol test of employees involved, particularly in the case of an egregious incident or if they suspect a worker involved was under the influence at the time.
However, employers who have a blanket policy of drug testing every worker who reports a workplace injury may be running afoul of OSHA regulations.
Under the federal agency’s rules, a company’s policies should limit post-injury testing to situations in which drug use probably contributed to what happened and for which testing can identify an impairment resulting from such behavior.
Blanket drug and alcohol testing policies, on the other hand, may discourage workers from reporting injuries, according to OSHA.
OSHA’s recommendation
Instead of blanket testing after accidents, OSHA recommends in a memo that employers restrict testing to those situations where “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.”
Under the rules, businesses do not have to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee contributed to the reported injury or illness for the employer to mandate the testing.
The probable cause for a drug test would need to be based on observation and a good-faith belief that an employee is under the influence of drugs and/or alcohol. Such observations should be made by two people trained to spot such impairments and should be documented in writing.
OSHA, in its interpretation letter, does state that drug testing is permitted if it’s to evaluate the root cause of a workplace incident that harmed or could have harmed employees. However, it stresses: “If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”
Examples of instances that OSHA says would not be reasonable to conduct a drug test include:
- An employee who reports a bee sting.
- A repetitive strain injury.
- An injury caused by a lack of machine guarding or a machine or tool malfunction.
A final word
In its memo, OSHA states that post-incident testing would violate the regulation only if the employer conducted testing “to penalize an employee for reporting a work-related injury or illness,” rather than testing to promote workplace safety.
Finally, the rules do make an exception for employers that conduct drug testing to comply with state or federal laws or regulations.