In a previous article, we cited that increasingly more U.S. employees are testing positive for illicit drugs in the workplace. According to a recent report, the number of workers testing positive for marijuana rose by 4% in 2016 over 2015. In addition, positive results for other drugs have risen. In light of this, employers are looking to take measures to tackle the issue of employee drug use as it affects the workplace. Part of this involves drug testing, of course.
Yet it’s important to remind employers that as of last year OSHA began enforcing new regulatory rules expanding the requirements for employers’ reporting and submitting workplace injury and illness records. These new reporting requirements also contain new anti-retaliation regulations, which may operate to make many current drug-testing policies non-compliant and subject to sanction. Although OSHA’s new rule does not ban drug testing of employees, it does prohibit employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses. It is unclear what will happen to employers who enforce post-incident drug testing policies that OSHA deems unreasonable, although several experts say they expect the agency will attempt to cite employers.
OSHA requires that “drug testing policies should 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.” An employer seeking to utilize post-incident drug testing of employees must be able to show:
- Probable cause that the work-related incident was as of a result of a drug-related impairment (for example, slurred speech, erratic actions, the smell of alcohol, etc.);
- The test will actually test for and identify the substance suspected in the impairment;
- The employer’s motivation in giving the test was not retaliation; and
- The test was not given as punishment or to embarrass the employee being tested.
Employers may also want to consider modifying their drug and alcohol testing policies to allow for discretion in obvious cases in which drug use or testing are clearly unrelated to an employee’s injuries and revisit the reasonableness of drug testing procedures with an employment attorney. Be mindful, however, that with discretion comes the potential for inconsistent application of the policies and disparate treatment claims.
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