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Employers now prohibited from using drug testing as threat

New rules from the Occupational Safety and Health Administration change the way employers submit injury and illness data.

Among those rules are some specifics that prohibit employers from discouraging workers from reporting their injuries and illnesses—including making sure that employees know that they can file a report without threat of retaliation. Retaliation can be a real fear for employees in companies that offer monetary incentives to their managers or supervisors for "accident-free" workplaces.

One of the focuses of the new regulations is on making certain that there's no implication that post-accident drug or alcohol testing will be used as a threat to keep reports low.

Does this mean that employers can't require post-accident drug or alcohol testing?

No. Employers are still entitled to make sure that employees aren't compromising their own safety or the safety of others through their drug or alcohol use.

How do the new rules help prevent retaliation?

The new rules make it clear that drug testing should only be used when drug or alcohol use could reasonably be suspected as the cause of the injury or illness.

For example, there's not a lot of reason to drug test an employee who is reporting a back injury from lifting a box that was heavier than expected. Similarly, it would be hard to justify drug testing someone who is reporting a repetitive motion injury in their hands from factory work. On the other hand, it would be appropriate to request testing if someone fell off a loading dock or stumbled into a pile of pallets for no apparent reason.

OSHA has said that "blanket post-injury drug-testing policies deter proper reporting," so existing policies need to be examined for compliance with the new guidelines and new policies need to take that message into account as they are developed.

If you believe that your employer is actively discouraging using drug and alcohol testing as a threat to intimidate workers into silence about workplace safety problems in violation of OSHA's rules, consider seeking legal advice as soon as possible.

Source: NewsOK.com, "Q&A with Vic Albert: New OSHA rules require employers to electronically submit injury, illness data," Paula Burkes, Feb. 03, 2017

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