Can OSHA Drug Test Employees?

Can OSHA Drug Test Employees?

Uritox

The Occupational Safety and Health Administration (OSHA) ensure safe and healthy work conditions of employees in the workplace and so it has the authority to mandate employers to conduct drug tests for employees. The majority of employers in America are required by law to maintain an honest and responsible workplace where employees are not put at risk for work-related injuries or illnesses. 

It means that employers must take precautions to protect their employees from being harmed on the job, including enforcing proper safety policies like keeping workplaces clean and safe. OSHA has the authority to drug test employees who they believe have not followed proper safety protocols so long as they do it according to legal guidelines. 

Without testing employees as a safety precaution, employers could be opening themselves up to legal liability, which is a business risk they must consider when hiring employees. However, let's look at the legal framework of employers' drug testing employees as per OSHA's guidelines.

Table Of Contents:

What Is OSHA's Role And Purpose?

The Occupational Safety and Health Administration was created under the Occupational Safety and Health Act of 1970 (OSH Act). In near-immediate response to the devastating events of the seventies. 

The purpose of this law is to provide a maximum level of workplace safety through education, safety inspections, and enforcement programs. OSHA works with employers and employees to make sure that workplaces are safe. 

The Occupational Safety and Health Act of 1970 (OSH act) gave OSHA the authority to create federal workplace safety standards, including those mandatory drug testing requirements. To achieve its mission, OSHA has the authority to drug test employees. 

The OSH Act states that employers must "offer a workplace environment without recognized hazards that are likely to cause death or serious harm." In essence, OSHA has given employers the power to drug test their employees to protect employee safety.

What Is the New OSHA Drug Testing Policy?

In its latest enforcement guidance, OSHA has addressed the issue of drug testing and guided the legal framework for drug testing. Additionally, OSHA has released new standards for testing saliva, urine, and hair samples.

OSHA states that impaired workers present a serious problem in the workplace. It is estimated that impaired employees cause 21% of occupational injuries and 16% fatalities. It is why employers must take measures to prevent dangerous accidents caused by drug use. 

OSHA clarifies that drug testing is allowed only as a part of a comprehensive drug prevention program, not as an isolated policy. This comprehensive policy must also include employee education and training programs. 

Employers must follow specific OSHA guidelines and procedures to conduct a drug-testing program. Employers should strictly adhere to the following:

  • Employers must follow the 20-year mandatory testing schedule (based on Urine Testing), which OSHA mandates. This schedule states that they may be tested once every twenty years if they do not have current alcohol and drug problem
  • Employee testing must be done as part of an established medical surveillance program. The local health department or occupational medicine specialist must review this program annually.
  • The employee testing policy must be in writing and readily available to employees. Additionally, it must be incorporated into personnel records, which will make it easier to enforce.
  • Before an employee is tested, they are given written notice that they are being considered for testing and what can happen due to illegal drug use.
  • All testing must follow the procedures outlined in the drug-testing program. A certified test administrator must conduct testing in a certified OSHA-approved facility.

What Types Of Drug Tests Are Permissible Under OSHA?

The OSH Act gives the agency authority to conduct medical exams (a medical exam is defined as "a procedure to determine whether an employee can safely perform his or her job duties" and "an investigation of an employee's physical condition that is designed to discover illness or injury").

However, the following are its examples of "permissible" drug testing:

  • Random drug testing
  • Random drug testing is done to identify drug users who are currently under the influence of drugs. This type of testing is a proactive approach to workplace safety and is permitted by the OSH Act. OSHA believes that this will help lessen the number of accidents and work-related injuries.

    OSHA defines this as testing which is "unscheduled" and where "employees are selected for drug or alcohol testing through a process that is reasonably calculated not to be discriminatory." 

  • Post-accident drug testing
  • OSHA considers post-accident drug testing as an especially effective way to identify impaired workers after a workplace accident is treated or reported. This type of testing is permitted even if the injury, illness, or other circumstance that gave rise to the need for a post-accident test, arose before being tested. 

    If workers test positive and face discipline due to drug use, they can still maintain their legal rights under the Rehabilitation Act. As per the guidelines, this testing is performed by only collecting specimens from a worker if they are injured due to a workplace accident. 

    Action taken under a post-incident drug-testing policy would only violate the law if an employer conducted the drug test to "penalize a worker for reporting a work-associated injury or illness rather than for the valid cause of promoting workplace safety and health.

  • Drug testing under a state workers'compensation law
  • OSHA states: "An employer may drug and alcohol test an employee under state workers' compensation law at the request of a state agency." 

    OSHA recently issued a memo on how state workers' compensation laws are applied in their enforcement actions and clarified that "state drug testing provisions are generally enforceable by OSHA when they do not conflict with federal requirements or exceed federal standards."

  • Drug testing under other federal laws
  • OSHA also has clear authority under other federal laws to drug test employees. It includes the US Department of Transportation (DOT) drug and alcohol testing programs, which the DOT administers.

    It means that OSHA has broad authority to test employees under federal laws, including the nation's transportation agency. In essence, this means that employers can drug test employees for state-mandated reasons, under federal transportation traffic safety regulations when needed and at the request of other federal agencies.

    What Are The Drug Testing Methods Under OSHA?

    There is a wide variety of drug testing methods available today. Each method has different strengths, weaknesses, and cost implications. OSHA's drug testing guidance explicitly addresses the different types of drug tests and their best uses so that employers can decide what type of drug test they use to meet their needs. 

    However, OSHA also recognizes some limitations to each testing method, and others have been found to have no worth. Moreover, the providers of drug and alcohol testing for employers in the United States have successfully established the types of tests available and their effectiveness in confirming drug or alcohol use. 

    One such leading provider is the UShealthtesting, which allows you to test at your nearest drug testing center (within 5 miles radius) and provides various drug testing options, including urine, saliva, and hair follicle drug testing. UShealthtesting helps employers, employees, and individuals by providing them with the resources for drug testing and offer immediate results.

    Where Can You Find OSHA Regulated Lab?

    UShealthtesting offers lab testing nationwide in 3000+ locations in the United States. You can choose the most convenient location to get your lab testing done. 

    They offer a wide range of tests, have a quick turnaround time, and provide top-tier service at an affordable price. Your results are sent to you or the organization via a secure courier service, guaranteeing your privacy and confidentiality. 

    If the results are positive, MRO (Medical Review Officer) will review your results. With over 3.3 million panels tested through Uritox, they have proven to be an industry leader in the lab testing industry. UShealthtesting also provides DOT testing, state and government agency testing, and workplace testing.

    What Challenges Does An Employer Face Due To OSHA Drug Testing Rules?

    A 2015 OSHA survey showed that it is challenging to implement a workplace drug-testing program in the United States. One of the main reasons behind this is that employers must maintain accurate and detailed records of all test results to implement a drug-testing program. 

    It includes various details, such as the time and dates the test was conducted, the type of specimen and its collection procedures, the chain-of-custody procedures followed during handling, storage, and shipment of specimens for testing purposes, etc. 

    Additionally, employers must follow strict OSHA guidelines and procedures that dictate when and how their employees may be tested. Guidelines and procedures like these can be quite costly for businesses. 

    For example, a medical surveillance drug test costs about $100-$300 per test (depending on the type of drug testing involved), whereas an annual drug testing program typically costs from $1,000 - $5,000 per test. 

    The cost of a drug-testing program can quickly add up, particularly if an employer has a large workforce. Further, employers must also bear the burden of providing evidence in court to show that they follow proper protocols and procedures when conducting drug testing.

    What Are The Implications, If An Employer Does Not Comply With OSHA's Drug-Testing Rules?

    OSHA's drug-testing rules are strictly enforced. The agency has the authority to carry out investigations and issue fines for employers who fail to comply with its guidelines. The fines written into the OSH Act range from $50,000 to $100,000 per violation.

    It is clear that under OSHA drug testing guidelines, employers must evaluate their employee base and determine which employees could be at risk of workplace hazards. It will help them make a sound decision as to whether they should require or implement drug testing in their workplace. If drug testing is deemed necessary for the workplace, employers must follow the prescribed drug-testing regulations.

    Suppose employers choose not to comply with OSHA's guidelines on drug testing and fail to protect their employees from hazards. In that case, they will jeopardize their chances of receiving a favorable review by the federal agency. Therefore, employers must understand OSHA's guidelines and fully understand their responsibilities.

    Conclusion

    As a highly regulated federal agency, OSHA has built its reputation as an advocate for workplace safety. It has established drug testing as a strong component of its program. By increasing protection for its employees and keeping them safe, OSHA has improved the health of its workforce. 

    The agency has also protected employers from any liabilities involved in workplace safety negligence. Therefore, it is important for employers to fully understand their roles and responsibilities under the new drug testing guidelines.

    FAQ

    As per OSHA, do employees have a right of access to their own positive or negative drug test results?

    The OSH Act requires that employees be notified of the specific substance they tested positive for, as well as the right to have an independent medical review administered by a licensed healthcare professional. To avoid a lawsuit, it means that employers must notify employees of their test results.

    Can an employee lodge a complaint against an employer who has violated OSHA standards?

    An employee can file a complaint with the OSH Act within 60 days of discovering that their rights under the Act (right to a drug test) had been violated no matter how long ago this violation took place.

    What companies are subject to OSHA?

    All employers and their employees are subject to the mandates of OSHA. It covers private, state, and local government employers and construction companies. In addition to these private sector employers, public sector employers are also subject to OSHA guidelines. They include the military and the federal government.

    What categories of employers are not covered by OSHA?

    Categories of employees not covered by the OSH Act include self-employed workers, farmworkers, small employers who do not have more than ten employees, and domestic workers.

    Can an employer take action if an employee refuses to take a drug test?

    As per OSHA, employees can refuse to take a drug test only in cases where testing is considered a violation of their rights. However, refusing to take a drug test can lead to disciplinary action.



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