OSHA recently issued a rule revising its Recording and Reporting Occupational Injuries and Illnesses regulation.  The rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers are already required to keep.  Importantly, the new rule also focuses on preventing employers from using drug testing that deters employees from reporting injuries and illnesses without improving safety.  The rule does not prohibit drug testing, but as of August 10, 2016, employers will face scrutiny from OSHA for broad post-injury drug testing policies.  

As a result of the new rule, drug-testing policies should limit post-incident testing to situations in which 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.  Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.  Therefore, broad policies that mandate drug testing after each accident or injury, without consideration of the type of accident or injury, should be revised to make such a consideration.  

For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  To avoid steep penalties, employers should remove overbroad post-accident policy language and consider testing that is more narrowly tailored.  Policies for post-accident testing in all situations should be eliminated.  Broad-based testing should be replaced with language that focuses on circumstances involving a sudden or unexpected events component, and focus on recent illegal drug use (e.g. oral fluids testing) instead of tests aimed at past use.  

Clients seeking to modify their post-accident or drug testing policies should call the Masud Labor Law Group for assistance.