OSHA’s New Post-Injury Drug Testing Policy

December 30, 2016

Drug testing employees is always a controversial topic. Employers must balance issues of workplace safety and productivity with the employee’s right to privacy, but employers just got some fresh guidance from the Occupational Health and Safety Administration (OSHA) on this issue. In May, OSHA issued a final rule, which if it goes unchallenged by employers, would prohibit blanket post-injury drug testing for employees. The rule began to be enforced on November 1, 2016 although it went into effect in August. Some employers have policies that require employees to take a drug test after getting hurt on the job, but those policies might be viewed as retaliation which can have a chilling effect on the reporting of workplace accidents and injuries.

The final OSHA ruling says that employers must, “establish a reasonable procedure for employees to report work-related injuries and illnesses 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. . .” The rule also requires that make sure that employees understand that they have the right to report work-related injuries and illnesses and that employers are not allowed to fire or retaliate against employees who report workplace accidents injuries or illnesses.

Employers want to be able to drug test employees in the interest of having a safe work environment and following the law, but this new OSHA rule make sure that employers cannot use post-injury drug testing to deter employees from reporting accidents and injuries. The new rule does not prohibit the drug testing of employees, “It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.”

OSHA does not intend the rule to simply ban the post-injury drug testing of employees, but it is looking to find a way to balance appropriate drug-testing policies with the employer’s need to know if drug use might have contributed to the accident.

In Pennsylvania, state law does not regulate or prohibit drug testing for private sector employers. If an employer decides to develop a drug-testing policy, it must take employee privacy into consideration. Transportation employees in Pennsylvania are required to participate in mandatory drug testing in compliance with Federal Motor Carrier Safety Administration (FMCSA) rules. If an employee is discharged from employment because they failed a drug test, or refused to take a required drug test they are not eligible to receive unemployment compensation.

OSHA encourages employers to review their drug-testing policies and make sure that they follow the new rule and with state law. If you are an employee who believes that your employer retaliated against you when you reported a workplace injury by requiring a drug test, or any other form of adverse action against you after you reported an accident or safety incident, you may want to speak to a Philadelphia workers’ compensation attorney who can help protect your rights. If you have been injured in a workplace accident and you are in a dispute with your employer’s insurer or the Pennsylvania Workers’ Compensation department, we can help.

Do you know what the rules are when it comes to drug testing in the workplace? Are you dealing with a dispute about the results of a drug test and your workers compensation claim? The experienced Philadelphia workers’ compensation attorneys at Larry Pitt & Associates are here to protect your right to fair compensation when you have been injured at work or discover that you have an occupational disease caused by your work environment. Please call 888.PITT.LAW or fill out our contact form to make an appointment for a free consultation at one of our multiple office locations. We proudly serve clients throughout Berks, Bucks, Chester, Delaware, Montgomery and Philadelphia Counties.

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