The Occupational Safety and Health Administration (OSHA) caused controversy and sowed corporate confusion with a recent comment on post-accident drug testing.
In the Preamble to the Recording and Reporting Occupational Injuries and Illnesses, OSHA noted that post-accident drug and alcohol testing could be viewed as a retaliatory practice.
So how do companies investigate workplace accidents effectively, while still protecting themselves legally?
Even though OSHA’s comment doesn’t carry the force of law, it does hint at a potentially different approach, according to Sebaly Shillito + Dyer attorney Karl R. Ulrich.
“It’s still murky and there’s a lot of uncertainty about where OSHA is heading,” he says. “Following an accident, it’s important to document any observations leading up to and after the accident, plus have reasonable suspicion which includes the employee’s background, to support the requested drug testing.”
Drug-using employees are 3.6 times more likely to be involved in workplace accidents and 5 times more likely to file a worker’s compensation claim. The National Drug-Free Workplace Alliance, http://www.ndwa.org/aboutus.php
If a supervisor was on-site at the time of the accident, the supervisor should note in a memo to the employee’s file observations such as:
- Drug or alcohol odors
- Slurred speech
- Sleepiness
If there was no on-site supervisor, company representatives should launch an investigation.
Some of the current confusion stems from the fact that the OSHA comments are diametrically opposed to the Equal Employment Opportunity Commission’s (EEOC) stance. “The EEOC endorses a standard drug-testing approach so there’s no individual distinction. If companies applied a one-size-fits-all policy, they were insulated,” says Ulrich.
In the current regulatory environment, Ulrich recommends a cautious, well-documented approach until OSHA issues a new post-accident regulation regarding retaliatory practice. If that does occur, he advises companies to seek legal advice and compare risks for every individual case.
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This material is not intended as legal advice and is for general informational purposes only. Those seeking legal advice should consult directly with legal counsel regarding their specific facts and circumstances.
