Our Experts | Annalise Burrington, Brand Director
Drug testing and the workplace – it’s always been somewhat of a controversial topic. OSHA has recently come out with some new regulations around the subject. As a brand director at a recruitment firm, it’s important to me to stay up to date on all rules and regulations that factor into the world of staffing and recruitment. I also strive to look at the big picture and how these changes factor into the ”day-to-day” for our customers.
In an effort to keep you informed, here are some points to keep in mind when evaluating your company’s drug testing procedures.
Pre-Employment Drug Testing
Medical marijuana is legal in 28 states and Washington D.C. Many healthcare professionals believe it has valid medicinal value. In addition to the legality of medical marijuana, recreational marijuana is legal in 8 states and in our nation’s capitol as well. However, since it isn’t federal law, in states where recreational marijuana is legal, employers can still drug test for marijuana, which can be somewhat confusing for employees.
While most private employers are not required to drug test when hiring employees, there are some reasons why one may choose to do so: To qualify for workers’ comp discounts, to avoid legal liability and to save money by avoiding productivity loss (under the assumption that employees who use drugs are more likely to be late, absent or be involved in a workplace accident.)
However, keep in mind that in this tight labor market, you may be excluding good workers by performing a drug test for marijuana before hiring. Oregon is currently sitting at an unemployment rate of 4%, a record low. The Washington Post states that “employers drug test a lot less than they used to because there’s very little evidence that testing does much to improve safety or productivity.”
You don’t want to miss out on quality candidates by ruling them out if you don’t have to! If you currently do urine drug tests and want to continue drug testing but still expand your candidate pool, you could consider changing your drug testing process to oral swabs. Many view this procedure as less invasive. It delivers instant results and can still detect recent drug use.
Post-Accident Drug Testing
In many workplaces, if an employee is involved in an accident, such as a fender bender in a company car, or a malfunction on the assembly line, they will be drug tested after the fact. The problem with this process is that there is that there is no current marijuana screen that will detect impairment. The tests can only detect what is in the person’s system, which could be residual from weeks prior. OSHA is trying to set limits on post-accident drug screening. There is no way to test for impairment, and impairment may have nothing to do with an injury, this makes post-accident drug screening complicated. OSHA will still consider tests that measure alcohol use, but not tests that measure other drugs.
OSHA’s ruling states that employers can’t deter proper incident reporting, or retaliate against employees for reporting an injury in the workplace. OSHA believes that if you have a policy that automatically calls for drug testing after every accident or injury, you are in violation of their law. While it may seem reasonable in some situations, it is often viewed as a privacy invasion and retaliation.
OSHA goes on to say that you may still use discretion to drug test an employee after an incident with good reason. However, employers must take into account the details of each specific incident and must have good reason to believe that employee drug use was likely to have contributed to the incident in question, before determining a drug test is necessary. Supervisors should be trained on how to recognize the signs and symptoms of drug abuse. Employers who don’t comply with the OSHA rules could face penalties for each violation. Note: This differs for those who employ transportation workers and follow the federal Department of Transportation laws for drug testing.
If you currently have an automatic mandatory post-accident drug testing procedure set up at your company, you may want to take a closer look and revise it.
You can read more about OSHA’s stance on Anti-Retaliation here.
If you have more questions about the OSHA laws and how they affect your company, contact your Selectemp representative today.