OSHA Post-Injury and Illness Drug Testing and Record-Keeping Rule

As of December 1, The Occupational Safety and Health Administration (OSHA) will begin enforcing the injury and illness record-keeping rule. Under the record-keeping rule, companies with more than 250 employees in covered industries will be required to submit annual injury and illness forms electronically.

The 300, 300A, and 301 forms will be filed electronically, and the reports will be made public on the internet.  Labor organizations and tort lawyers will be among those interested in viewing the reports.

According to OSHA, “employers must establish a procedure that is reasonable for employees to report work-related illness and injury timely and accurately.” A reasonable procedure is one that does not deter or discourage an employee from reporting the workplace injury.

According to Material Handling & Logistics, OSHA has appeared to ban post-accident drug testing.  The reasoning is that post-accident drug testing may be used to intimidate employees into not filing a report.

According to OSHA, it will not issue a citation if the drug testing is mandated by state or federal law, or is required by state workers’ compensation laws.  Also, employees who report work-related illness or injuries are not prohibited from being drug tested as long as the employer has an “objectively reasonable basis for testing.”  This rule does not apply to aspects other than injury reporting.

According to OSHA, “post-incident drug testing should be limited to situations in which drug use by the employee was likely a contributing factor in the incident and taking a drug test would confirm impairment.”

Some of the factors that OSHA will consider in determining if a post-incident drug test was acceptable is whether the employer has a reasonable basis to conclude that the drug use contributed to the employee’s illness or injury, whether the other employees involved in the incident were tested, and whether the employer tested only the person reporting the injury.

To find out more information on how to establish a post-injury drug testing program that will comply with OSHA’s standards or if you believe you have been wrongfully drug tested by your employer contact, an experienced New York employment law attorney.  Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.


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