If you have 11 employees or more you are subject to OSHA’s new Electronic Recordkeeping Rule, which includes provisions which indicate an employer should not have a blanket post accident testing policy.

The effective date of the Rule was supposed to be August 1, 2016. On July 13, OSHA extended the Rule’s effective date from August 1 to November 1, 2016. There are several lawsuits that have been filed requesting an injunction blocking its implementation. 

This rule will NOT affect post-accident drug testing in order to comply with Department of Transportation (DOT) or state drug free workplace program (DFWP) requirements. These states include: Alabama, Arkansas, Florida, Georgia, Idaho, Kentucky, Mississippi, Ohio, South Carolina, Tennessee, Virginia, Wyoming.

For non-regulated employers with post-accident testing policies who do not participate in a state drug free workplace program; it is important to start thinking about revising post accident drug testing policies.

It is anticipated that even if the legal challenges succeed, some aspects of the new Rule will survive. Now we are waiting for OSHA to provide guidance to the Rule changes as they stated they would provide. We await further guidance and clarification.

What can you do now?

• Review your drug testing policy for provisions regarding post-accident testing. At some point a Blanket Post-Accident Testing Policy may need to be revised. Policies may have to be tightened to tie referrals for post-accident testing to situations where it appears an employee caused or contributed to the accident or the employee involved in the accident is reasonably suspected to be under the influence of drugs or alcohol. It will be critical to be able to demonstrate that your drug testing policies do not deter reporting of injuries and does not constitute retaliation for reporting a specific injury.
• Start scheduling reasonable suspicion training for your Supervisors. Do your supervisors know how to determine signs and symptom of an employee under the influence of drugs or alcohol? Training will reduce your exposure to liability.
• Consider implementing or increasing random drug testing in order to attempt to detect and deter illegal drug users before accidents occur. Random testing programs show a return on investment.
• Get involved with your State’s Drug Free Workplace Program and perhaps receive a discount on your worker’s comp insurance.

Check back often for updates on this important issue. Compliance specialists at USA Mobile Drug Testing will be available to assist with your drug free workplace policy updates.