Legal Alert OSHA Protections and Post-Incident Substance Testing

Authored by Theodore T. Storer

What Will Change?

In its continuing efforts to improve workplace conditions, the Department of Labor through the Occupational Safety and Health Administration (OSHA) issued new rules related to work place accidents.  The new rules are intended to promote employee reports of accidents.

A fact sheet from OSHA can be found here:  https://www.osha.gov/Publications/OSHA3862.pdf

What Does This Mean?

Many employers have a policy that requires an employee to undergo a drug and alcohol test, either through a urine screen or a blood test, following a work place accident that causes personal injury or property damage.  A potentially unintended consequence involves post-accident substance testing.

A blanket employer policy may violate the new OSHA rules.  The new rules do not explicitly prevent or prohibit a blanket policy.  However, the implementation of a blanket policy could easily violate the rule leading to sanctions

Employers with incentive programs for safety may also need to get rid of these incentives.  Under OSHA’s reasoning, a bonus program related to safety reduces the incentive to accurate report workplace incidents.

Another change is that OSHA wants most employers to provide their annual report on workplace injuries electronically.

Sanctions:

If employers violate the new policies, the potential sanctions can be from $11,740 for a first serious violation and up to $127,400 for a repeat or willful violation.

When Will the Change Take Place?

The new rules were to become effective on August 10, 2016.  OSHA, however, due to the number of comments, has delayed the effective date to November 1, 2016.  Because Indiana has its own OSHA agency, employers in Indiana have a 60 day grace period before IOSHA will start investigating employers based on the new rules.

Action Item:

Employers should review their policies to confirm that testing will only occur when there is reason to believe that an incident could be related to drug or alcohol use.

Employers may want to start training supervisors on recognizing the signs of substance abuse to comply with existing reasonable suspicion testing and the new post-incident rules.

Employers should also find out if their business is now required to report electronically.    Most large employers and businesses with high risk of injury are required to submit their 2017 annual reports on-line.


The Legal Alert is for general information purposes only, and is not intended as legal, tax or accounting advice or as recommendations to engage in any specific transaction and does not purport to be comprehensive.  Under no circumstances should any information contained in this Legal Alert be used or considered as an offer or commitment, or a solicitation of an offer or commitment, to participate in any particular transaction or strategy.  Any reliance upon any such information is solely and exclusively at your own risk.  Please consult your own counsel, accountant or other advisor regarding your specific situation.   Rothberg Logan & Warsco LLP will not be responsible for any consequences of reliance upon any opinion or statement contained here, or any omission.