The Occupational Safety and Health Administration recently finalized a new rule that employers should keep in mind when performing drug tests. The new regulation prohibits employers from enforcing policies requiring mandatory drug testing after a workplace accident or other incident. In OSHA’s view, such a strict “post-incident” policy constitutes an unlawful “adverse employment action.”
Under the new regulation, employers are only permitted to perform incident related drug tests when: (a) there is reason to believe that an employee’s potential drug use was likely a contributing factor to the incident, and; (b) the drug test can accurately identify the impairment caused by drug use. Thus for example, OSHA concludes that it would be unreasonable for employer to provide post incident drug testing for the following sort of problems: bee stings, repetitive strain injuries, lack of machine guarding, or machine malfunction.
In light of this new regulation, and the changing regulatory practices at the state and local level, this is a good time to review different drug testing policies that businesses may have. So when can you perform a drug test?
This form of testing is used when an employer has a reasonable suspicion or probable cause to believe that an employee is under the influence of drugs in the workplace. This is by far the most discretionary of the drug testing policies and therefore it is subject to the most scrutiny. Employers and supervisors should have their suspicion corroborated by another supervisor to ensure that the employee is not being arbitrarily targeted for drug testing. Additionally, employers will need to make sure that they are not being discriminatory in their drug testing, as a testing policy that singles out a certain group of people may be a violation of the Civil Rights Act.
Random Drug Testing
The OSHA regulation does not affect an employer’s prerogative to perform random drug tests. Employers can continue such policies as they have in the past. Because random drug testing is done on an entirely random basis at unannounced times, it serves as an effective deterrent to employee drug use. And if all employees are equally subject to random drug tests, there can be no allegation of discrimination.
Periodic testing is done on a scheduled and announced basis, such as quarterly or annually. This method ensures that all employees are tested on a regular basis and at the same time. The down side to this approach is that it is not as effective in screening out drug users. Employees can evade detection so long as they have enough will power to abstain for a few weeks in advance.
The new OSHA rule most directly affects employers who use want to continue testing after a workplace incident has taken place. Employers will no longer be able to perform blanket post-incident drug tests. Instead, they will only be permitted to test employees if employee drug use was likely a contributing factor to the incident, and a drug test would accurately identify the impairment caused by drug use. Accordingly, employers may need to review and change their policies.
Changing State Laws
Although marijuana remains illegal under federal law, numerous states have liberalized their drug policies. A large number of states have legalized medical marijuana. Additionally, Alaska, Washington, Oregon, and Colorado have all legalized the recreational use, while other states have pending initiatives along those lines.
These changes may eventually raise interesting issues regarding drug testing; however, the fact remains that federal law trumps state law. And the Colorado Supreme Court recently affirmed that employers may continue to enforce zero tolerance drug policies. Nonetheless, employers should track changes in their states’ regulations, as this remains an evolving area of the law.
It is worth emphasizing, once again, that employers should avoid any appearance of singling-out any specific class of workers for testing. There are legitimate safety situations where it makes sense to test groups of workers, such as those who work with heavy machinery or dangerous chemicals, on a regular basis. However, employers should be aware that, if their testing policies disproportionately affect minority groups, they may face allegations of discrimination—regardless of whether the policy appears neutral on its face. Accordingly, it may be advisable to consult an employment law attorney, licensed in your state.