Jon Hyman, Ohio Employer’s Law Blog:
Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.
Allow me to pause while this sinks in.
The agency concedes that employers might still lawfully do some post-accident testing on a case by case basis so long as they are willing to develop evidence pointing to, e.g., a given employee’s drug use as an accident cause. Of course it is precisely such effectively accusatory, singling-out testing that is most likely to provoke litigation for having unfairly cast suspicion on an individual employee.
7 Comments
With marijuana usage increasing and some states having it legal, to not drug test is about as smart as checking for a gas leak with a lighted match. How about alcohol testing too? Again government stupidity at its best. No employee should refuse to be tested, unless they have something to hide.
Of course the several Federal agencies have rules to the contrary. FRA, FAA, etc.
It’s the first thing NTSB wants done in a transportation related.
The difference here seems to be a blanket policy of testing rather than testing on the basis of impairment may have caused the accident.
For example, Jones and Smith work in a warehouse. Jones is walking down the aisle when Smith, who is driving a lift, strikes the shelving causing enough vibration and shaking for a box to fall from the shelving, striking Jones on the shoulder and breaking his collarbone.
Smith should be tested because his actions caused the incident. But why should Jones be tested for anything? It was not his fault that the box fell on him. He did nothing to cause the accident. If you test Jones, it seems like a fishing expedition with no safety benefit.
The flip side of this argument is that if you are going to hold companies accountable for every incident in the workplace while demanding that companies investigate every avenue with the goal of reducing workplace accidents, then the company has to test everyone.
To me, this is another case where companies are put in no win situations. No matter what they do, someone (ie some lawyer or agency) is going to come after them.
I must disagree, Mr. Carver. Perhaps Jones was inattentive and walking around in a daze because of his ingestion of the Wacky Weed on his lunch-break, and that’s why he did not avoid the box…very few accident situations are so clear-cut that all fault can be determined immediately.
The OSHA rule seems to provide an out for complying with state law, such as workers’ compensation. On its face this seems reasonable. They also throw out common sense situations ( passenger in car accident in course and scope), but the language seems to make employers provide a theory where intoxication may have been a factor. Also many employers qualify for WC premium reductions as drug free work places, but such policies often require mandatory testing for all accidents.
Of course, many state Workers Compensation systems provide premium reductions for employers with post-accident screen policies. OSHA/DOL are as usual overreaching and squeezing employers in the process. Not that they care – employers are evil unless they are government.