OSHA To Ban Post Accident Drug Testing…Or Does It. 

By Phil La Duke

According to fellow safety blogger, Jon Hyman of the Ohio OSHA Law Blog “Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.”

I’m not going to reprint all of John’s article but you should give it a good read. I am not a lawyer nor do I play one on TV and according to his bio he is, so if I say something that contradicts him his opinion trumps mine. 

That being the case, I don’t necessarily agree with his conclusion that OSHA forbids post accident drug testing in ALL cases, as I read through the article and the links provided I noticed that in all cases where OSHA was quoted it used words like “automatically” and “blanket” when referring to post injury drug testing. 

The repeated use of words like automatic and blanket would seem to me (again not a lawyer) to indicate that there still could be some post accident drug testing in cases where there is reasonable cause to believe that the person or persons involved in an injury was intoxicated or under the influence of drugs of some sort.

I was thought that post incident drug testing was shortsighted and reactionary the time to ensure that your workforce is drug-free is before someone is killed by some drug addled employee. Just as it is prudent to address workplace violencebefore somebody comes in and most everybody down with a machine gun.

Regular readers of this blog will recognize the soapbox I’m about to mount which is we’ve got to stop worrying about preventing injuries and start proactively causing safety call it “positive safety” if you prefer but as long as we tried for vent injuries with sensually count bodies. Personally I would rather measures to be taken before the fact to ensure that I am fit for duty.

I’m currently the production safety consultant two large major motion picture. People ask me what if people are following the rules, am I writing anybody up, etc. I answerthis way “I’m not your mother, I’m not your boss, I’m not OSHA, I’m not the cops. What I am is someone who can advise you such that you can make the best decisions and make informed decisions about your safety ultimately the choice as to whether not to follow the rules, observe safety protocols, wear PPE,and abstain from drugs or alcohol while on the job is yours and yours alone.”

We tend to lose sight of that when we get in the thick of things and where we are in the area where the workers are doing the actual tasks. It gets easy to see yourself is responsible for making sure that they work safely when in fact that is the job of their supervisor.  

What does all this have to do with the OSHA ruling? We need to ensure that organizations have policies and procedures for ensuring that workers are fit for duty. That could mean drug intoxication, it could mean impairment by prescription drugs,  it could mean sleep deprived, or simply physically or mentally  unfit for the duties required for the Job to which their assigned.

This new OSHA interpretation is a good thing it is meant to take the fear out of reporting injuries; the belief is if someone knows that they are certain to fail a drug test after they have been injured—even though they use those drugs rec room it recreationally on their off time— They are far more likely to underreport.

In my Pinyan under reporting and the self delusional attitude so many companies have regarding their safety records is the greatest threat to worker safety that we currently face. Pretending there is no problem when there is significant risk—the first aid kits are stripped bare, no near misses are reported, safety professionals worry more about Worker’s Comp. case management then lowering risk and no injuries are reported— creates an ideal climate for serious injury or fatality.

The fact that OSHA is forcing companies to rewrite arbitrary rules that would tend to cause a reasonable person to deliberately concealing injury means that we can have the opportunity to replace those antiquated rules with rules and procedures that are far more likely to reduce risk and cause safety. 

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