Will Proposed Injury Reporting Rules Discourage Post-Accident Drug Testing?

By Jonathan Crotty and Charlotte Offerdahl Nov 5, 2014
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In August 2014 the Occupational Safety and Health Administration (OSHA) issued a supplemental notice to a notice of proposed rulemaking that would result in significant changes to the agency’s accident and illness reporting requirements.

OSHA justified the changes by noting its perception that employers were substantially underreporting their actual injury rates.

One portion of the notice requested comments on rules that would open employers to citations for workplace policies and practices that deter employees from reporting job-related injuries and illnesses. During the subsequent comment period, labor representatives cited mandatory post-accident drug testing as an example of a policy that should be prohibited under the new rules. These advocates called for such testing only where the employer has evidence that drug or alcohol use contributed to the accident.

In response, employer representatives noted the strong deterrent effect against illegal workplace drug use presented by post-accident testing. They also noted requirements in several states for post-accident testing under workers’ compensation and drug-free workplace laws. These commenters noted that the same logic could be used to prohibit zero-tolerance policies for violation of workplace safety rules.

It is unlikely that OSHA will enact a strict ban on post-accident testing. However, employers may be called upon to justify the connection between their testing policy and the specific circumstances of each workplace accident.

OSHA is expected to issue proposed rules based on this input next year. Employers and labor will have another chance to comment on the specific requirements contained in any such proposal.

Jonathan Crotty and Charlotte Offerdahl are partners at law firm Parker Poe, based in Charlotte, N.C.

Copyright 2014 © Parker Poe Adams & Bernstein LLP. All rights reserved.

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