New Ruling Affects OSHA Drug Testing Enforcement

Effective August 10, 2016, the Occupational Safety and Health Administration (OSHA) issued a new reporting rule requiring employers to establish a reasonable procedure when reporting work-related illnesses or injuries.  The rule stipulates any new procedure cannot discourage employees from submitting a report.  Additionally, employees are protected from retaliation from their employers if such a report is made.

While the new rule itself doesn’t address drug testing — federal law had traditionally imposed few limits on drug testing of employees — OSHA asserts that blanket post-injury drug testing would undermine the rule’s purpose. Even so, OSHA’s acknowledges the necessity for post-incident drug testing in some situations, but with limits.

Unlike alcohol, there are no widely accepted drug tests that measure present impairment; rather, drug tests only indicate recent use of a substance.  OSHA cautioned employers that testing employees post-incident without identifying indicators of impairment might deter reporting and hence be unlawful. Therefore, before adverse action against an employee is taken, positive drug tests should be weighed against other factors at the time of an injury, such as the employee’s presentation, prior incidents, and previous concerns.

While the new rule became effective on August 10, 2016, OSHA will not begin enforcement until November 1, 2016.  Only the private sector is subject to the new federal OSHA regulations; however, in Connecticut both private and public sectors are affected. Since 1994, Connecticut has had a federal statute prohibiting blanket post-injury drug testing unless an employer reasonably suspects an employee is under the influence of alcohol or drugs which could or are adversely affecting performance.

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