02
Nov

Policing Workplace Injuries Requires a Gentle Touch

Under federal law, employers cannot deter proper reporting or retaliate against employees for reporting a workplace injury or illness. It may be tempting to want to rule out drug or alcohol use after a workplace injury, and mandate that an employee undergo testing. But doing so can be seen by regulators as a discouragement to employees to report injuries, and therefore as a form of harassment.

Over the last several years, OSHA has issued guidance explaining that certain safety incentive programs and blanket post-accident drug tests would likely deter reporting and would therefore violate the retaliation rules. As a result, employers should limit post-accident drug tests to situations where drug use likely contributed to the incident and for which a drug test can accurately show impairment caused by drug use. Common sense says that there must be a reasonable possibility that drug use was a causal factor in the incident.

This points out the importance of having defined drug testing policies and procedures that are properly communicated to employees, and are applied without malice, discrimination or harassment. Random drug testing should be avoided, except for very safety-sensitive positions (think aviation, transportation, and certain government contractors, such as those who do work for NASA or the Department of Defense).

California law allows an employer to require a "suspicionless" drug test as a condition of employment after a job offer is tendered but before the employee goes on the payroll. California is one of the few states that define a right to privacy in the state constitution, which could be implicated via drug testing (though that doesn’t make it per se illegal).

Drug-testing policies should be approved by legal counsel, and rigidly adhered to. Any temptation to deviate from standard policy should be run by employment counsel. To sum up, pre-employment drug testing (once the candidate has been offered the position) is legal, as long as it is applied uniformly, for example, when it comes to age or race. An employer can decide that certain positions, such as those in which the employee has access to company coffers or proprietary data, merit pre-employment drug testing, while others, such as social media coordinator, do not. The courts frown upon random drug testing, except where safety is a critical issue. Post-accident drug testing should be done with caution, and typically only after conferring with counsel.