Last updated: November 30, 2020
Post-accident drug testing is an important part of any drug testing program, and it is required for all DOT drug testing programs and most state drug-free workplace programs.
Employers often conduct post-accident drug tests to determine whether a workplace accident was caused by drug or alcohol use—which statistically is the primary cause of accidents in the workplace.
This helps employers to reduce their workers’ compensation insurance costs, and in the event of a positive test result, shields them from legal and financial liability. It also serves a preventative role. In this role, it’s a powerful deterrent to employee drug use because they know a workplace accident will result in an immediate drug test, and upon a positive test result, termination.
There has recently been some confusion leading some employers to mistakenly believe that post-accident drug testing has been prohibited. This is completely false.
The confusion is due to a misinterpretation of the U.S. Occupational Safety and Health Administration’s (OSHA) 2016 changes to its Recording and Reporting Occupational Injuries and Illness regulations. (29 CFR 1904 / 81 FR 29623)
This ruling serves to prevent employers from trying to discourage employees from filing legitimate accident reports following a workplace accident. That’s all. Employers are still legally permitted to conduct post-accident drug testing in accordance with their existing, formally documented drug testing program. This is true even in states where marijuana is legal.
Post-accident drug testing programs
Post-accident drug testing is governed by specific laws and regulations, which vary—often drastically—from state to state.
USA Mobile Drug Testing’s comprehensive drug-testing program ensures full compliance with all applicable laws and regulations while helping you to create a safer and more productive workplace.
Who is required to conduct post-accident drug testing?
Technically, only companies regulated by the Department of Transportation and those that do work for the federal government are required to conduct post-accident drug testing. But many employers who don’t fit these criteria still do. This is because it helps to discourage drug use, encourage a safer workplace, and as part of a comprehensive drug-testing program, reduce workers’ compensation insurance rates.
How does post-accident drug testing work?
Immediately following a workplace accident, the employer will call USA Mobile Drug Testing’s dispatchers to schedule a test. We have staff available nationwide, and can even send a mobile collection specialist to your employee’s location, 24/7/365.
This mobile aspect is especially important for employers who are regulated by the Department of Transportation because their drivers are often alone and far from the office. It’s also important for employers in construction, oil and gas, railroad, and other industries where employees work in remote locations.
Regardless of the circumstances, an employee’s medical care should never be delayed or denied while waiting for a post-accident drug test. Their safety and well-being come first.
Following the test, but pending results, they may return to work at the employer’s discretion
For DOT-regulated employers
After receiving the necessary information and payment, we can dispatch a collector immediately, and in most cases, they will arrive on the scene within two hours or less. This is well within the requirements of 49 CFR parts 40 and 382 which state that a DOT alcohol test must be conducted within eight hours, but ideally two, and a DOT drug test must be conducted within 32 hours of a workplace accident.
As of January 2018, all DOT-related post-accident drug tests must require an expanded panel including four additional semi-synthetic opioids that are frequently abused. These substances include:
This is in addition to the previously included drugs:
For everyone else (Non-DOT drug testing)
Once we receive the required information and payment, we can immediately dispatch a collector, who will arrive on the scene within two hours or less in most cases.
Although not required to follow DOT regulations, these employers are still encouraged to conduct post-accident drug testing as soon as it is practical after an accident. Ideally, this should be within two hours. There’s an important reason for this. The longer you wait, the less likely you will be to identify breath alcohol levels and/or drug metabolites. This means that even though employee drug use may be the cause of a workplace accident, the employer could still be held financially and/or legally responsible.
Employers conducting a non-DOT post-accident drug test are free to include as few, or as many drugs as they want to test for, but the standard DOT panel is recommended because it includes the most commonly used drugs. You are also free to utilize any testing method, to include urinalysis, oral fluid / mouth swab, and hair drug testing.
*Note: Urgency of alcohol testing is critical because breath alcohol levels drop off quickly. If you wait too long, an employee who was under the influence of alcohol could test negative for alcohol impairment leaving you liable for the damages.
Post-accident drug testing program guidelines
Implement and enforce a written drug testing policy
Your drug testing policy should contain a statement that all employees are subject to drug testing—to include post-accident 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.
Conduct training and education
Your drug testing policy must have a training and education component. Employees and supervisors must understand your drug testing policy, the consequences of violating it, 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.
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. 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.
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, 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.
*Note: Due to HIPAA regulations, employers should not ask an employee if they have consumed a controlled substance that has been prescribed to them due to potential legal issues that may cause.
Approve emergency care immediately
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.