It seems that the purple haze from the public’s use of recreational marijuana has drifted into the offices of OSHA and clouded their thinking once again. OSHA, in their most recent attempts to make the workplace less safe (that’s right, less safe not more safe) are promoting employee drug use. Plain and simple, OSHA is systematically destroying safety in the workplace all while hiding behind the jejune argument of accident reporting. They have been using this argument for years – safety incentive programs demote reporting of accidents, so don’t have a safety incentive program.
OSHA wants employers to take responsibility for every accident occurring in the workplace even if the employee was injured because of illegal activity, they didn’t follow safety policies or because they are in seriously poor health (smoking, drinking and overeating) and die of a heart attack. Now, employers are supposed to take responsibility for an employee’s legal and illegal drug use when it it results in a workplace accident. How you ask? By not performing drug testing.
Section 1904.35(b)(1)(iv) of the final rules prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness. OSHA’s Preamble to the Final Rule interprets the regulation broadly to prohibit any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.” OSHA applies the prohibition to any “blanket post-injury drug testing policies deter proper reporting,” concluding that drug-testing alone constitutes an “adverse employment action.” OSHA instructs employers to “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.” OSHA explains with examples: it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”
After all the fanfare, OSHA concedes in their comments, that complying with a Federal or State law requiring drug testing does not violate the new accident reporting/recordkeeping rules. Such as anyone holding a commercial driver’s license (think DOT) who is involved in a motor vehicle accident. These drug test’s still require urine samples which do not measure impairment. How OSHA differentiates adverse actions is amazing.
Employer’s can still have a blanket pre-hire drug testing policy in certain areas. They can still have blanket drug testing for motor vehicle accidents, but not for injuries? If the testing applies to all employees, then how can it single anyone out? Isn’t it about time that employees (and everyone for that matter) start taking personal ownership and responsibility for their actions. Look, if you come to work high on drugs and you get injured you shouldn’t get to file a claim against your employer. And if you do come to work high, it is quite possible that it was your reaction time, your clouded judgement that caused the injury in that tool malfunction, but now an employer can never prove it because it’s a tool malfunction. Thanks OSHA.
Here’s some advice to help you stay in the game:
- Get your policies in order. Rewrite them so that they address the drug induced injury testing.
- Have major penalties for failing to report injuries on time.
- Have major penalties for supervisors who don’t report injuries on time.
- Start conducting pre-hire drug testing for everyone.
- Train all supervisors in drug and alcohol awareness – reasonable suspicion testing.
- Implement a return-to-work program for all incidents