Question: Can you provide us with a sample post-accident drug test policy based on OSHA’s final rule that became effective on August 1, 2016?

Answer: We do not recommend or provide a sample post-accident drug test policy. These types of blanket post-accident drug screening policies are problematic under the federal Occupational Safety and Health Administration’s (OSHA’s) new recordkeeping rule because of the strengthened prohibitions against employer retaliation. The final rule does not prohibit drug testing of employees; it only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory, and the rule does not prohibit such testing.

If your company currently has a post-accident testing policy, a best practice is to look at strengthening the pre-employment, random, and/or reasonable suspicion drug testing requirements (per state law and with legal counsel) while relaxing any post-accident testing by limiting it to safety sensitive positions or accidents where it is clear that impairment could cause or contribute to an accident. This will help continue to protect the company as well as worker safety, while protecting an employee’s rights to be free of retaliation for filing a workers’ compensation injury claim.

Of importance, the retaliation provisions of the OSHA final rule were scheduled to take effect August 10, 2016, but enactment has been delayed to December 1, 2016 due to a pending lawsuit.