Ohio's Drug Free Safety Program doesn't exempt your company from OSHA's position on post accident testing
,A few weeks ago, we received an inquiry from one of our partners asking about OSHA's position on post accident testing and whether Ohio employers in the Drug Free Safety Program (DFSP) needed to comply. It seems one of his employers had attended an education session where the speaker addressed the new OSHA rule. In doing so, the speaker stated that employers in the DFSP were exempt from compliance with the post accident testing provision addressing automatic testing policies. The generality of the statement by the speaker leads employers in Ohio down a dangerous path.
First, OSHA's position on post accident testing addressed in the new recordkeeping rule makes having an automatic testing policy on all injuries a violation of the final rule. The rule "encourages" employers to only test when there is reason to believe that drugs and/or alcohol may be involved. While it is true that, on October 19, OSHA clarified their position on employers exempt from the rule to include those participating in state workers' compensation discount programs, Ohio's Drug Free Safety Program does not require an automatic testing policy after an injury.
From the Drug Free Self Implementation Guide (pages 16 and 17):
"BWC provides what we consider to be an “intelligent-testing design.” As such, even after conducting an accident investigation and determining who may have caused or contributed to a work-related injury, we do not require employers to order a post-accident test if all the following apply:
To better understand the DFSP requirement, let's use a simple example: A nurse hurts her back while lifting a patient. In an automatic testing policy, the nurse would be required to test. However, following the DFSP language above: if the injury is common to the nurse’s job (it is), there's no violation of work rules (there is not) and there’s no reason to believe that drugs or alcohol are involved (there is not), no test would be conducted.
Using the example provided above, it's easy to see that the DFSP only requires the same type of decision making process when an injury occurs that OSHA supports - not an automatic testing policy.
For many years, employers in Ohio have utilized an automatic testing policy after an injury requiring medical treatment. Nobody has told them that they have to, it's just become common practice. The automatic testing policy has never been a problem because the practice goes beyond what the BWC requires. But now that OSHA is on the scene and without a DFSP requirement to protect participants, those employers with an automatic testing policy are running afoul of OSHA's anti retaliatory provision and the consequences can be harsh. Unless regulated, employers should abandon the practice of automatic testing and move to a procedure and policy that allows discretion when requiring a test. More from our blog here: New Anti Retaliatory Rule Affects Post Accident Testing Policies.
Update: A federal judge has denied a preliminary injunction request and enforcement of the anti retaliatory provision in the recordkeeping rule is set to go forward on December 1. While there may be updates on the rule at a later time and the change in presidential administration may impact the rule after the first of the year, employers should ensure compliance with the new rule immediately.