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OSHA issues memo to clarify employers’ post-accident drug testing rights

In the recently-released memo, OSHA reiterated that the rule does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as employers have an objectively reasonable basis for testing. 

When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.

Further, OSHA clarified that it will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.

Finally, OSHA will not issue citations under section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law.

The rule becomes effective on Dec. 1, 2016.

The full text of the memo can be found here.

Source: U.S. Department of Labor, Occupational Safety and Health Administration, 10/19/2016

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