Not So Fast: OSHA New Post-Accident Drug Testing Regulation Likely to be Short Lived - Greater Cincinnati Automobile Dealers Association

Not So Fast: OSHA New Post-Accident Drug Testing Regulation Likely to be Short Lived

By Scott W. Gideon

The Occupational Safety and Health Administration (“OSHA”) has set forth a series of new regulations concerning post-accident drug testing.  OSHA has taken the position that blanket company policies which call for a post-accident drug and alcohol screen following all injuries or reports of injuries are disfavored.  The agency takes the position that such policies undermine the reporting of injuries in the workplace.  They fear some employees will not report injuries out of concern of losing their jobs due to a positive post-drug test.  Rather, the new OSHA regulations favor post-accident drug tests only where there is reasonable suspicion or probable cause that drug or alcohol impairment played a role in causing the injury.

OSHA cites an example of a bee sting occurring during work hours as one situation that would not be an appropriate injury for post-accident drug testing.  Rather injuries where lack of judgment, poor coordination, or impaired balance, resulting in injury, would be those that OSHA sees as appropriate for the employer to obtain a post-accident drug test.  For example, an employee bypassing a machine safety guard and sustaining an amputation, would be a circumstance where post-accident drug testing would be appropriate. 

The new OSHA regulations do carve out an exception where employers may continue to have blanket drug and alcohol testing if they are mandated by state or federal law.  For example, the Department of Transportation’s regulations require long distance truck drivers to be tested following motor vehicle accidents.  Other employers who engage in drug free workplace incentive programs and other similar drug free workplace programs may also be able to utilize these programs as a “safe harbor” to continue post-accident drug testing in each and every case.

While there have been numerous legal challenges to these regulations, a federal district court in Texas recently denied a request by various trade and commerce groups to find these regulations to be unconstitutional.  While that litigation continues to unfold, it remains possible that the federal courts may block the ultimate implementation of OSHA’s new post-accident drug testing regime.

More than likely, the Department of Labor under President Trump, would change the focus of OSHA’s current enforcement initiatives.  It is expected that the recent changes to post accident drug testing regulations would be withdrawn with a whole host of additional regulatory changes that OSHA has put into effect over the last year or so.  It is recommended that employers review their policies but not undergo any wholesale changes as it is likely that the current post-accident drug testing regulatory scheme will be short-lived.