New OSHA Drug Testing Rule

Have you heard about the new OSHA drug test rule?   new-osha-drug-testing-rule

The United States Department of Labors Occupational Safety & Health Administration issued a final rule effective August 10, 2016 requiring employers to implement a reasonable procedure for illness and accident reporting and testing. This rule applies to companies with 10 or more employees.

This new ruling is supposed to be a anti-retaliation rule, meaning employers are barred from getting back at an injured employee by requiring a drug test. (29 CFR § 1904.35 (b)(1)(i) )

If your company has a “blanket policy”, meaning any workplace accident or injury requires a drug test, then according to OSHA, that policy needs to be rewritten.    We can help.

OSHA is recommending the wording be along the lines of post-accident drug testing will take place if employee drug use is likely to have contributed to the incident, and which the drug test can accurately identify impairment caused by drug use. OSHA’s basis for this ruling is that if an employee has a minor accident, knowing that any reportable incident requires a drug test, that employee will not make the report. And OSHA has upped the fines for a violation of this rule. The fines start at $12,000.00 up to $120,000.00 for repeat violations.

This rule does not supersede DOT testing. DOT requirements for post-accident drug and alcohol testing are very clear. Take a look at the chart here.

OSHA is putting employers in a real bind by requiring the employer to prove “current impairment”. In an alcohol test its very easy to prove impairment. Alcohol tests, either breath or saliva, measure the current level of alcohol in the system. Drug screening can show recent use, but not current impairment. Each body metabolizes drugs differently. It depends on the sex, the body mass, the body fat, etc. THC / marijuana can be detected up to 30 days after use, Cocaine only 2 or 3 days.

It may be that by implementing random testing of non-regulated employees, employers can find the problems before an accident or incident happens. Compliance Associates, Inc. can put together a cost effective, easy program to test employees on a schedule that works for your business.

In addition to the post-incident drug testing rule, OSHA also is requiring reporting be done electronically. This goes into effect on January 1, 2017. A business with 250 or more employees will be required to submit OSHA’s Form 300A for calendar year 2016 by July 1, 2017. Please read about the final rule here.

Employers with 20-249 employees in high risk industries must also submit the form by July 1, 2017.

Click here for the list of industries.