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OSHA & Post-Accident Drug Testing: What You Need to Know

December 5, 2016

OSHA's New Rule affecting Post-Accident Drug Testing became effective 12/1/16. Here's what you need to know:

For several months, Synergy has been communicating to our customers that OSHA was in the process of imposing new restrictions on long-established employer post-accident drug testing (PADT) practices. These have been incorporated into the "Anti-Retaliation" provisions (29 CFR 1904.35(b)(1)(iv)) of OSHA's new recordkeeping rule. In summary, OSHA has put these provisions in place because they believe an employee should not be afraid to report a workplace injury out of fear of having to take a post-accident drug test. These provisions include language that left many companies wondering how they need to alter their existing PADT programs; or, if they would even have to stop conducting PADT altogether. Post-accident drug testing has been a staple of many workplaces' practices and continues to be a key tool in determining the root cause of a workplace accident.

After being challenged in court and then delayed twice, the Anti-Retaliation provisions are now in effect. The confusion surrounding PADT still remains, however. So let's clear that up now.

1. Under what circumstances is my company able to conduct PADT for workplace injuries?

  • To assist in the root cause analysis of any workplace accident, a PADT should be conducted, unless the immediate known facts of the accident indicate that impairment could not have played a role in the accident occurring. The exception to this rule is for injuries that may take a long time to become noticeable (e.g. repetitive motion claims). The way to make a determination for each workplace injury is to simply ask, "Could the use of drugs have at all contributed to this accident?" If the answer is yes, then it is acceptable to move forward with a PADT.
  • To comply with any Federal or State Law specifying that PADT be conducted (e.g., Department of Transportation Regulations).
  • In states such as South Carolina and Georgia, voluntary drug-free workplace programs can qualify for certain credits. In these states, employers are permitted to conduct PADT on lost-time claims. However, since it can be difficult to determine whether or not a claim will become lost-time, you can simply revert back to our recommendation in which you ask yourself, "Could the use of drugs have at all contributed to this accident?"

2. Can my company perform a drug test on an employee who was involved in an accident, but was not injured (and thus did not require medical treatment)?

  • Yes. For example, if you have a forklift driver who runs into a pallet rack, but does not need medical treatment, not only is a PADT acceptable, but it should be mandatory, as a way to determine the root cause(s) of the accident.

3. I have heard that a PADT must be able to illicit actual impairment at the time of the accident/injury. Is this true?

  •  Yes, if you are testing for alcohol. No, for all other drugs. According to OSHA, when testing for alcohol, you must use currently-available technology that will allow you to determine if an employee is under the influence of alcohol at the time of the accident. This technology would include tests such as blood-alcohol content, breathalyzers, and the like.

    For all other drugs, obtaining a standard, urine-based drug screen at your chosen medical provider(s) will remain acceptable under the new OSHA rule. Please keep in mind that Synergy still recommends the use of our Swab PADT program because it tests for more substances at a lower cost.

For additional information, please refer to the links below. You may also contact your Loss Prevention Consultant at any time to discuss this topic further.

Important Links

OSHA's anti-retaliation provisions of the Final Recordkeeping Rule
OSHA's memo regarding interpretation of the anti-retaliation provisions
Synergy's Post-Accident Drug Testing template
Synergy's Post-Accident Drug Testing template (NC only)
Synergy's Supervisor Accident Investigation Form for Swab PADT
Synergy's Supervisor Accident Investigation Form Template