With a goal of getting more complete and accurate employer reporting, OSHA has made it clear that policies that “discourage” employee reporting of injuries and illnesses are prohibited. Although not clear in the regulation, OSHA has specifically discussed employers’ drug-testing policies in the comments that accompany the final rule. OSHA is concerned about company policies that mandate drug or alcohol testing, and sometimes both, after any accident or injury.
Although OSHA acknowledges that drug testing “may be a reasonable workplace policy in some situations,” it argues that such testing “is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”
OSHA states that employers should adopt policies that limit post-incident drug 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.” The rule, however, does not affect testing that is required by state or federal laws or regulations, such as worker’s compensation laws. According to OSHA, it is aimed at prohibiting the use or threat of drug testing as a form of retaliation against employees who report workplace incidents.
In light of OSHA’s comments, employers should consider revising their post-incident testing policies such that there is a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness,” and the drug test can accurately identify impairment. SMACNA members should also ensure that company drug policy language aligns with applicable collective bargaining agreement language. Prior to the (new) compliance date of November 1, 2016, The SMACNA Guide to Safety and Health Policies, Procedures and Model Programs will be revised by the SMACNA Safety Committee to reflect these new requirements including model drug testing program language.
For more information visit OSHA's webpage on the final rule, which includes links to a fact sheet and frequently asked questions. For additional information or guidance, contact Mike McCullion, SMACNA’s director of market sectors and safety at mmccullion@smacna.org or 703-995-4027.
