OSHA overreach on workplace drug testing

By Paul Ross

Responsible employers routinely test employees for the use of illegal drugs. Testing promotes safety, controls workers’ compensation costs and promotes compliance with federal regulations. Oklahoma law gives employers the right to test in a variety of circumstances.

One of the most critical of those circumstances is following a workplace accident. But, in an example of significant government overreach, the Occupational Safety & Health Administration has issued a new rule effective Aug. 10 that will effectively prohibit post-accident testing.

OSHA believes that employers’ current policies of mandatory post-accident testing improperly deter reports of workplace injuries. Thus, under the new rule, employers may conduct post-accident testing only when drug use is “likely to have contributed to the incident,” and when “the drug test can accurately identify impairment caused by drug use.”

This standard creates two hurdles for employers.

First, testing may only be done when drug use is likely to have contributed to the incident. OSHA offers no real guidance to assist employers in identifying these circumstances, and the cause of an accident is almost never obvious at the time. Employees who hide their impairment well will escape responsibility under the new standard, and risks to others will likely continue.

But even when drug use is clearly likely to have contributed to an incident, the second hurdle is far more troublesome. Post-accident testing is permissible only when the test is designed to measure “impairment,” rather than simply confirming the presence of drugs in a sample.

Unfortunately, few if any, drug tests are designed to measure impairment. OSHA has, quite intentionally, articulated a standard that may be impossible for employers to meet, and the new rules include harsh penalties of up to $125,000 per occurrence.

Early this month, a group of trade associations filed suit in federal court seeking an injunction that would prohibit OSHA from enforcing this rule. If the court does not issue an injunction, employers will need to immediately re-evaluate their testing policies.

At a minimum, employers’ policies must be amended from mandatory post-accident testing, to testing only under those circumstances in which drugs are “likely” to be a contributing factor. But employers that choose to continue post-accident testing must understand that the methods of their third-party testing vendors will become critical. If the tests used do not measure “impairment,” employers will bear a significant risk.

This article appeared in the July 25, 2016 issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.