In this episode, we dive into Post Accident Drug Testing.
After Oct 2018, OSHA has stated that most instances of workplace drug testing are permissible, including:
- Random drug testing;
- Drug testing unrelated to the reporting of a work-related injury or illness;
- Drug testing under a state’s workers’ compensation law;
- Drug testing under another federal law, such as a U.S. Department of Transportation rule; and
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed an employee. However, the Department warned that, if the employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just the employee who reported an injury.
And in TENNESSEE, we dove a little deeper into the minimum property damage levels stated in TN Laws.
Reasonable suspicion testing
Reasonable suspicion” is based on a belief that an employee is using or has used drugs or alcohol in violation of this company’s policy and is based on specific, objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, such facts and inferences may be based upon, but not limited to, the following:
- Observable phenomena while at work such as direct observation of substance abuse or of the physical symptoms or manifestations of being impaired due to substance abuse;
- Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance;
- A report of substance abuse provided by a reliable and credible source;
- Evidence that an individual has tampered with any substance abuse test during his or her employment with this company;
- Information that an employee has caused or contributed to an accident while at work;
- Evidence that an employee has used, possessed, sold, solicited, or transferred drugs while working or while on the employer’s premises or while operating the employer’s vehicle, machinery, or equipment; or
- Involvement in an accident that results in an injury to another individual or in property damage exceeding Five Thousand Dollars ($5,000.00), or such minimum amount as set by U.S.DOT Guidelines, if less.
The key takeaway from this episode is that laws and regulations change often and quickly. Before 2016, the above would work, from 2016-2018, no good, and after October 2018, the above works, but you also need to consider state changes!