The Reporter (Lansdale, PA)

Rules for drug tests have changed

- By Terri Dougherty J.J. Keller & Associates Inc.

At one time, a blanket drug testing policy could provide a comfortabl­e refuge for employers. A blanket policy typically calls for employees to always be tested under certain circumstan­ces. Such a policy often would require tests to be conducted after an accident that caused an injury or a crash resulting in a certain amount of damage.

The policy could also broadly apply to any workplace injury, from carpel tunnel syndrome to a sprained ankle caused by a fall from a ladder.

It’s not you, it’s the policy

This type of policy took some pressure off supervisor­s who had to tell employees that they needed to take a drug test.

It wasn’t the employee’s or supervisor’s fault that a drug test was needed; it was just company policy. No one had to feel embarrasse­d about taking the test because everyone had to do it if an incident met the criteria outlined in the policy.

A blanket post-accident drug testing policy also gave employers confidence that they were not discrimina­ting. If the policy was followed, it was difficult for employees to claim they had been tested for discrimina­tory reasons.

The circumstan­ces, not the supervisor’s opinion, dictated the need to test.

Injury reporting concerns

This type of policy was acceptable, and even common, until mid-2016, when the Occupation­al Safety and Health Administra­tion (OSHA) published its “Improve Tracking of Workplace Injuries and Illnesses” final rule. With the rule, OSHA wants to make sure a company’s drug testing policies do not discourage employees from reporting a workplace injury or illness.

While OSHA does not ban post-accident drug testing, it did note that blanket post-accident testing policies tend to deter reporting. An employee who is faced with a mandatory drug test after a workplace accident might be less inclined to report an injury or illness.

OSHA recommends employers limit post-accident testing to situations in which employee drug use is likely to have contribute­d to the incident.

This requires some thought on the part of a supervisor or manager, as the individual circumstan­ces of each situation

need to be taken into account.

A report of a bee sting or carpel tunnel syndrome, for example, is no longer a reason to automatica­lly send an employee for a drug test. The simple fact that an accident occurred also may not be enough to warrant a test.

The facts of the situation must be considered before a test is conducted, and a supervisor must weigh whether drug use is likely to be a contributi­ng factor.

The OSHA rule does carve out some exceptions. If testing is required by state worker’s compensati­on laws or a federal agency such as the Department of Transporta­tion, employers may conduct drug tests without running afoul of the OSHA rule.

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TERRI DOUGHERTY

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