Tom Barnes
Compliance Specialists, Inc.
Can you remember the day when running an EASA business was about just repairing and selling motors, pumps, and other similar types of electromechanical equipment?
Those were the times when you didn’t have to worry about being sued by a herd of lawyers trying to take a chunk of your business. Well, times have changed.
Each and every one of us knows how a drug or alcohol impaired employee will not only be a danger to themselves and others, but how they can affect quality, production, and a host of other issues.
Several years ago, owners and managers found that a solution to help minimize this from occurring was to have a fair drug testing policy. This testing could include pre-employment, post-accident, for cause, random testing, or a combination of all or some of these. These drug testing policies were put in place to deter on-the-job drug and alcohol use and from this writer’s perspective, it works.
New OSHA rules
But today, it has gotten complicated. In the U.S., enter the lawyers and the Occupational Safety and Health Administration (OSHA). Say, for instance, you have an employee who shows up drunk or high on drugs and gets hurt. Then, when the employee was tested and fired, somehow it can become our (the employer’s) fault. Lawyers have won cases like this; OSHA has now passed rules related to these situations.
As part of the new final rule that became effective December 1, 2016, involving new reporting requirements (more on that later), this rule discourages blanket post-accident drug testing. The commentary from OSHA discusses how post-accident drug testing can be retaliatory in nature and allows its compliance officers to “decide” if it discourages reporting of accidents. If so, you are subject to possible fines of $12,600.00 per occurrence.
So, is the solution to stop this form of drug testing? From this writer’s perspective, the answer is NO. Too much is at stake in our businesses to allow alcohol or drug impaired employees to work in our facilities. The solution, as OSHA allows, is to bolster the reason as to why you are performing these post-accident drug tests.
OSHA states that if the testing is done as part of a state-sponsored drug free workplace campaign, required by your workman’s compensation company, or similar reason, then they will not consider such testing retaliatory in nature.
So, the solution is to do a little homework, find a supporting reason for post-accident drug testing and test away. This really does deter drug and alcohol use on the job.
Survey results
To the members who participated in the May Management Pulse survey on employee drug testing, we thank you. The survey results were both interesting and helpful.
As discussed above, the Occupational Safety and Health Administration (OSHA) in the U.S. has issued a regulation that may cause your organization to be cited and fined if your company is performing post-accident drug testing and the compliance officer or OSHA decides that the testing is retaliatory in nature and discourages reporting of accidents. In the same regulation, OSHA stated that they will not cite the organization if the facility was performing these post-accident drug tests as part of a state-sponsored drug free workplace campaign.
With that in mind, following are results of the May Management Pulse survey. Of 162 respondents, 63% indicated they have a drug testing policy. And, of 101 respondents, 91% indicated they have their program in writing. For the other 9%, I recommend that you look for sample policies and put your program in writing for you to follow. And more importantly, these written policies will be helpful to defend your actions if challenged.
From the survey, we were also able to learn that 79% of 100 respondents with a policy (written or otherwise) indicated that their policy includes post-accident drug testing.
Of the 79 respondents to the question about whether their workmen’s compensation insurance company could assist in the defense of post-accident drug testing, 59% stated they did not know. Of the remaining 41% who did know, 94% reported that their insurance company could provide assistance. Therefore, the results show that in the overwhelming majority of the time, insurance companies are a good source of potential legal protection for companies performing post-accident drug testing.
Additionally, 58% of 154 respondents said their state or province has a drug-free workplace program; 42% do not. And finally, 57% of 93 respondents are aware of the requirements for the state or province’s drug-free work place program; 43% are not.
Defense options
Those who have a drug-free workplace program and are aware of the requirements can use this information if they should ever need to defend against a citation claiming that their post-accident drug testing was unfairly acting as a deterrent to accident reporting. But you should use this defense only if you are sure that your organization is participating in the program.
For those who don’t have help from either the insurance company or through a drug-free workplace program, look for some other supporting and rational reason to defend your position and run it past your company attorney.
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