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OSHA’s New Injury Reporting Rule and Employee Drug Testing

Workers’ compensation in Massachusetts is generally what we consider a “no-fault” system. That means that if you are injured on-the-job in Boston, workers’ compensation benefits can still be paid to you no matter how the accident occurred or who was at-fault. But there are a few exceptions to this, and one of the biggest is when the employer has reason to believe the accident was caused by the injured worker’s use of alcohol and/or drugs.drinkinggirl

For this reason, companies started to make it standard practice to test workers for drugs and alcohol after an accident. But this has been met with mixed response from the courts. For example, the Ohio Supreme court struck down a part of state workers’ compensation law that allowed employers to automatically test workers for drugs and alcohol after a work injury, finding it a violation of workers’ Fourth Amendment rights against unreasonable searches. Another case in West Virginia resulted in the same finding after a worker who injured his back was ordered to under drug and alcohol screening five days after the work accident.

Now, the issue has been raised again in the wake of the Occupational Safety & Health Administration (OSHA)s newest rules to prompt better reporting of all workplace injuries. Now, effective August 10, 2016, employers across the country are required to have a “reasonable procedure” for workers to report work-related injuries and illnesses both promptly and accurately. The rule forbids this procedure from discouraging or deterring an employee from accurately reporting a work-related injury or illness. Additionally, the rule specifically bars retaliation for a worker who reports workplace injuries or illnesses. Per this new standard, companies that require or request post-accident alcohol and/ or drug testing are going to face down additional scrutiny from OSHA under the new Final Rule to Improve Tracking of Workplace Injuries and Illnesses because such post-incident testing may deter reporting of the injury. 

To be clear: There is no part of the final rule that specifically talks about drug testing. However, OSHA did provide commentary that accompanies the final rule to help answer any frequently-asked questions to help employers become compliant with the rule as soon as possible.

What the agency asserted was that while drug testing of workers might be reasonable policy at some companies in some situations, it could potentially be seen as an invasion of workplace privacy. So if work injuries or illnesses are not very likely to have been caused in any way by drug use of the employee – or if the method of testing for the drug won’t identify the impairment, only indicate the employee used the substance at some time in the past – mandating employee drug tests after a workplace injury could deter someone from reporting a workplace injury.

So what that means employers hoping to comply with the rule need to be very careful about implementing post-accident drug testing requirements. Only in cases where drug or alcohol use or impairment are believed to have been a contributing factor to an accident and only where accurate tests for impairment exist can employers initiate post-accident drug and alcohol tests.

For example, there is presently no test that is widely scientifically accepted as being a reasonable detector of marijuana impairment. Blood testing will only tell you if a person has THC in his or her system. But because the drug can remain present for days or weeks after consumption, it’s not an accurate measure of intoxication.

Alcohol, meanwhile, moves swiftly through the body. That means an impairment test initiated days after the accident won’t reveal whether the worker was intoxicated at the time of the accident.

If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at 1-888-367-2900.

Additional Resources:

Final Rule to Improve Tracking of Workplace Injuries and Illnesses , U.S. Department of Labor

More Blog Entries:

Parr v. Breeden – Supervisor Co-Workers Not Liable Under Workers’ Comp Exclusive Remedy, July 3, 2016, Boston Work Accident Lawyer Blog