OSHA instructs employers to limit post-incident testing
New Drug Testing OSHA Rule
Section 1904.35(b)(1)(iv) of the final rules prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness. OSHA's Preamble to the Final Rule interprets the regulation broadly to prohibit any "adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness." OSHA applies the prohibition to any "blanket post-injury drug testing policies deter proper reporting," concluding that drug-testing alone constitutes an "adverse employment action." OSHA instructs employers to "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." OSHA explains with examples: 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."
OSHA's interpretation of its new rule calls into question the widespread use of mandatory post-accident drug testing programs. While federal courts may not uphold OSHA's reasoning that a drug-test, standing alone, is a form of an "adverse employment action," employers should be mindful of their policies and should consider taking action to ensure compliance with the regulation. Drug-testing policies should be revisited for compliance by August 10, 2016...
Taken from Linkedin. Published by NAOHP
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