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14 Feb Mandatory Post-Accident Drug Screening and the New OSHA Anti-Retaliation Regulations for Work Place Accidents and Injuries

On May 12, 2016, OSHA published a final rule that, in part, explicitly prohibits employers from retaliating against employees who report work-related injuries.  Part of this prohibition includes mandatory drug screens after a work-related accident as a matter of course.  In a memo issued by the Department of Labor, it is stated that drug screening after a reported work related accident is permissible so long as the employer has an “objectively reasonable basis for testing.”  Essentially, there needs to be some rationale for testing the employee before a test can be conducted. To illustrate these new guidelines, the memorandum describes a hypothetical crane accident that injures employees at a construction site, but not the crane operator.  The memorandum states that there would be no reasonable basis for drug testing the employees who were injured if they were not in a position to possibly contribute to the cause of the accident.  However, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness.  This would include the hypothetical crane operator, regardless if he reported an injury. These new regulations impose a greater duty upon...

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