OSHA Puts Brakes on Post-Incident Drug Testing

John GarnerCompliance, Legislative Updates, Resources

The Occupational Safety and Health Administration (OSHA) will publicly post employer injury/illness reports beginning January 1, 2017. The new rule making this change also has two sections already in effect (as of August 10, 2016) related to post-incident drug testing. These sections identify two scenarios where employers may be penalized for using post-incident drug testing in a way that deters employees from reporting: (1)“if an injury or illness is very unlikely to have been caused by employee drug use”; and (2)“if the method of drug testing does not identify impairment but only use at some time in the recent past.” Alcohol testing can meet this standard. It is unlikely that currently-available marijuana tests can, except in rare cases. This new OSHA requirement punched a major hole in historically accepted “drug-free workplace” procedures. To learn more, search for “impairment” at https://www.federalregister.gov/articles/2016/05/12/2016-10443/improve-tracking-of-workplace-injuries-and-illnesses.

Cal-OSHA officials have informally stated that until they address this issue, it is “business as usual”.  Please remember that other rules may apply, such as those from the Department of Transportation.


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