Employers are not prohibited from all drug testing when employees self-report injuries. Instead, OSHA limits testing to incidents “in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” There must be “a reasonable possibility that employee drug use could have contributed to the reported injury or illness.”

Under some circumstances, a company could drug test an employee following a work-related injury. For example, if forklift drivers injure themselves by driving into a row of shelves, or crane operators injure themselves or other workers while operating the machinery.

Absent a reasonable possibility that employees’ drug use could have contributed to the reported injury or illness, employers cannot test employees. An employer would violate the new OSHA regulations by requiring employees to be drug tested when they get stung by a bee, strain their back through repetitive motion as part of their job, or develop carpel tunnel from typing at length.

Evaluation standards

Determining whether drug testing was reasonable after an employee reported a work-related injury or illness can be difficult. The government has indicated that it will use the following factors to decide if drug testing an employee was reasonable:

• Whether the employer could have reasonably thought that drug use was a factor in producing the injury or illness, and conducting the drug test could tell the employer why the accident happened.
• Whether the employer tested other involved employees or merely the reporting employee.
• Whether the work was so dangerous that “the employer has a heightened interest in determining if drug use could have contributed to the injury or illness.”
• Whether the drug test the employer used can accurately provide insight into whether the employee was under the influence when the accident happened.

Of particular importance to employers is determining whether or not a particular drug test can show that an employee was impaired at the time of the accident. While alcohol testing can often accurately determine an employee’s impairment, other drug testing may not be as informative. For example, some marijuana tests can detect the presence of THC or its metabolites, but not whether and to what extent a person was affected. As such, OSHA could determine that an employer improperly used a particular drug test because the test itself is unable to indicate whether drug use directly caused the accident or injury.

Exceptions

Even though the new OSHA regulations regarding drug testing affect many existing company drug testing policies, they do not apply to drug testing under state workers’ compensation law or other state or federal law. Moreover, random drug testing and pre-employment drug testing are not affected by these new regulations.

Navigating the new drug testing regulations and their intersection with other state and federal laws is difficult. Employers should review their drug testing policies with legal counsel to determine whether they comply with OSHA and other applicable laws.

Attorney Michael McNally is a shareholder with the Minneapolis law firm Felhaber Larson, and practices in the areas of labor law and employee benefits, with extensive experience in the construction industry. He is labor council for the Sheet Metal and Air-Conditioning Contractors’ National Association.