How do we investigate workplace accidents effectively, while still protecting ourselves legally?
The Occupational Safety and Health Administration (OSHA) caused controversy and sowed corporate confusion with a recent comment on post-accident drug testing. In the Preamble to the Recording and Reporting Occupational Injuries and Illnesses, OSHA noted that post-accident drug and alcohol testing could be viewed as a retaliatory practice.
Even though OSHA’s comment doesn’t carry the force of law, it does hint at a potentially different approach, according to Sebaly Shillito + Dyer attorney Karl R. Ulrich.
“It’s still murky and there’s a lot of uncertainty about where OSHA is heading,” he says. “Following an accident, it’s important to document any observations leading up to and after the accident, plus have reasonable suspicion which includes the employee’s background, to support the requested drug testing.”
If a supervisor was on-site at the time of the accident, the supervisor should note in a memo to the employee’s file observations such as:
- Drug or alcohol odors
- Slurred speech
If there was no on-site supervisor, company representatives should launch an investigation.
Some of the current confusion stems from the fact that the OSHA comments are diametrically opposed to the Equal Employment Opportunity Commission’s (EEOC) stance. “The EEOC endorses a standard drug-testing approach so there’s no individual distinction. If companies applied a one-size-fits-all policy, they were insulated,” says Ulrich.
In the current regulatory environment, Ulrich recommends a cautious, well-documented approach until OSHA issues a new post-accident regulation regarding retaliatory practice. If that does occur, he advises companies to seek legal advice and compare risks for every individual case.
Note: Drug-using employees are 3.6 times more likely to be involved in workplace accidents and 5 times more likely to file a worker’s compensation claim. The National Drug-Free Workplace Alliance, http://www.ndwa.org
A special thanks to Matt Messersmith with Signet Screening for sharing his insight on this topic. For more information about Signet’s background checks, pre-employment assessments and technological capabilities, visit Signet’s website.
Do you struggle with doing what is right for your company and right for your employees when it comes to creating a Drug Free Workplace? Sometimes the “right” solution isn’t always easily identified. Strategic HR understands your dilemma of being between a rock and a hard place. We can provide you with best practices, policies and training when it comes to creating a Drug Free Workplace, how to investigate workplace accidents, or any needs concerning the Health, Safety and Security of your workforce. Please visit our Health, Safety & Security page for more information on these services.