The Occupational Safety and Health Administration (OSHA) is the federal agency that ensures that employees have a safe and healthy place to work. It also reviews how workplaces handle workplace injuries, including employer policies involving workers’ compensation claims. Earlier this year, OSHA published a new policy rule regarding reporting workplace injuries of which all employers should be aware. One important issue this rule addresses is when employers can perform a drug test after a workplace injury.
Many employers have had blanket policies that require a drug test after any workplace accident that is reported. However, OSHA officials have been concerned that such policies may prevent employees from reporting work-related accidents and injuries out of fear of failing a drug test and being terminated. Section 1904.35(b)(1)(iv) of the Occupational Safety and Health Act prevents the following:
- Any policies or procedures that discourage or deter an employee from reporting a job-related injury; and
- Discriminating against or discharging employees for reporting a job-related injury.
OSHA asserted that drug testing any employee who was injured in a workplace accident would likely deter or discourage the accurate reporting of injuries and that terminating employees who failed said drug tests could constitute retaliation for reporting their injuries. Therefore, the final rule sets out the following guidelines for employers in regard to post-accident drug testing:
- Only conduct drug testing after an accident when drug use may have likely contributed to the accident
- Only conduct drug testing when trying to determine current impairment caused by drugs
- Do not conduct drug testing as a punitive measure for reporting a workplace injury
In short, if an employee reports an injury because of an equipment malfunction that was completely beyond their control, a drug test would not be appropriate since the employee’s actions did not contribute to the incident. However, if an employee reports an injury from a vehicle collision, drug testing may be proper as impairment could have been a cause of the crash.
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If you believe that your employer has violated OSHA by deterring reporting or discriminating against you for reporting a workplace injury, you should not hesitate to discuss your situation with a skilled workers compensation attorney. When you call David H. Kaplan Attorney at Law, you can speak with an experienced New Jersey lawyer regarding your options, so please call our office for help today.