Employers typically conduct post-accident drug tests to determine whether workplace accidents were caused by consumption of illegal substances—which is the primary cause of accidents in the workplace.
This is important for two reasons. First, it helps to discourage employees from using drugs because they know they’ll be caught if they have a workplace accident. Second, it saves employers money on their workers compensation insurance, and enables them to dispute the compensability of the injured worker’s claim if drug use played a role.
Important OSHA post-accident drug testing regulation updates
On May 12, 2016, U.S. Occupational Safety and Health Administration (OSHA) made several updates to their Recording and Reporting Occupational Injuries and Illness regulations. One of the most substantial updates in the published Final Rule (29 CFR 1904 / 81 FR 29623) is the revision of subsection 1904.35(b)(1)(iv), which states that employers must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.
Some employers and HR managers have mistakenly interpreted this to mean that post-accident drug testing was no longer permitted. In reality, it simply prohibits employers from attempting to discourage employees from filing accident reports. Employers are still legally permitted to conduct post accident drug testing according to their documented drug testing program—even in states where marijuana is legal.
Post-accident drug testing programs
In most states, you can challenge a workers compensation claim if there is sufficient evidence that the employee was intoxicated at the time of the accident intoxication played a role in the accident.
Many states assume a causal relationship between a positive drug or alcohol test result and a workplace accident, a justifying the denial a workers compensation benefit to anyone who has tested positive for drug or alcohol use, while some provide a presumption of intoxication based on a positive drug or alcohol test result, but require cause to be proved.
USA Mobile Drug Testing’s post-accident drug testing programs (which should also include pre-employment and random drug testing) ensures full compliance with post-accident drug testing laws, while helping to make your workplace safer and more productive.
Written drug testing policy
Your drug testing policy should contain a statement that all employees are subject to drug testing, and that a refusal to take a drug screen will result in a presumption that the test would have been positive. Furthermore, the drug policy should be signed by the employee and be universally enforced. If the policy is not enforced, the claimant can effectively argue that no valid policy exists.
Training and education
Your drug testing policy must have a training and education component. Employees and supervisors must know the policy, the consequences of violating the policy, and the harmful effects of drugs and alcohol in the workplace. Supervisors must also be able to make the decision to initiate reasonable suspicion drug testing, and must know the company policy inside and out.
Conduct drug testing immediately following the accident
Post-accident drug testing must be conducted immediately, even after even minor accidents. A court can deny the intoxication presumption if the test occurs too late after the accident.
Take written statements immediately following the accident
In a written, signed statement, an employee should state whether they have consumed any alcohol within 24 hours of the accident, or any non-prescribed controlled substances, including cocaine or marijuana, within 30 days of the accident. If you suspect drug or alcohol use by the injured employee, ask coworkers whether they noticed any unusual behavior and obtain written statements if they have. Never discuss the results of any drug tests with the injured worker’s co-workers.
Have drug tests conducted by a trained collector
The workplace drug test must strictly follow your company’s documented drug testing policy, Federal and State law, identify any substances used, and quantify the drug and/or alcohol levels.
Approve emergency care
The injured employee is entitled to reasonable emergency medical care until he is stabilized or discharged.
Do not encourage the use of drugs or alcohol
An exception to the intoxication defense occurs when employers provide a substance or intoxicating beverage, and encourages its use, or if the intoxication occurs in pursuit of the employer’s interest. Have a written drug testing policy against using alcohol, even at work-related activities.