Iowa law has fairly strict limits on an employer’s right to conduct drug and alcohol testing. One area in which testing is allowed, however, is when there is a workplace accident. An employer may require an employee to undergo post-accident drug or alcohol testing if the employee is injured and requires medical treatment, or if there is property damage over $1,000.
Many Iowa employers have concluded mandatory post-accident drug and alcohol testing improves workplace safety. It may deter employees from using illegal drugs or alcohol in the first place if they know an accident will be followed by a mandatory drug screen. Employers have to give notice to their employees of this practice, so it should not be a surprise to employees. A positive drug test also allows an employer in many circumstances to impose discipline or terminate an employee who presents a safety risk because of drug or alcohol use. Lastly, if a drug or alcohol test reveals the employee was intoxicated, it provides a defense to the payment of workers’ compensation benefits if the intoxication was a substantial factor causing the injury.
But, Iowa employers that use mandatory post-accident drug testing should take note of November 1, 2016. That is the date a new OSHA rule concerning post-accident drug testing takes effect. Contrary to the rationale underlying Iowa’s drug testing law, OSHA contends such testing actually makes the workplace less safe because it deters employees from reporting workplace injuries or illnesses. While the new rule does not contain a blanket prohibition against post-accident testing, an employer who uses drug testing or the threat of testing as a form of retaliation is subject to an OSHA citation and fine. Adding insult to injury, OSHA has increased its fines by 78%. The fine for a first serious citation will be in the range of $7,000-$12,740. Deliberate or willful violations could result in fines up to $70,000-127,400.
So, how does OSHA decide if your mandatory drug testing procedure has a retaliatory motive?
Testing required by state or federal law or regulation is safe (such as the federal motor carrier safety rules). OSHA has declared in advance that such programs are not implemented with retaliation in mind.
On the other hand, mandatory testing for every accident that causes serious injury or property damage is not safe from scrutiny for retaliatory motive. The agency is likely to approve of post-accident drug testing only if it is done in specific, narrow circumstances. For example, the Agency comments to the final rule state such testing should be limited “to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”
What are the practical implications of this new rule? For one, to avoid conflicts with OSHA, employers should no longer rely on blanket policies allowing post-accident testing. Each and every decision to test will have to be justified based upon the facts of the particular accident. As a practical matter, only if an employer has reasonable suspicion of impairment based upon the employee’s behavior or the circumstances of the accident should testing be used. Unfortunately, it is very difficult for employers to make such judgments, particularly under the threat of an OSHA citation and fine if you are wrong.
It is also important to remember that a positive drug test, in and of itself, is not necessarily evidence the employee was impaired. Taking adverse action based upon a positive screen, absent other evidence of impairment, exposes the employer to a higher risk of citations and fines.
The new OSHA rules are one more example of a federal agency imposing its view on states that have already developed balanced approaches for dealing with workplace safety. It is hard to conceive how restricting post-accident drug testing will improve workplaces for Iowa employe