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The U.S. Occupational Safety and Health Administration’s electronic record-keeping rule still discourages employers from mandating post-incident drug testing — a major contradiction when employers are being drawn into the battle against opioid use, experts say.
The rule does not prohibit drug testing of employees, including drug testing pursuant to U.S. Department of Transportation rules or state workers compensation program testing requirements, but it prohibits employers from using drug testing or the threat of testing to retaliate against an employee for reporting an injury or illness.
“Employers have really struggled with that because there’s so much drug use in the workplace,” said Fiona W. Ong, a partner with Shawe Rosenthal L.L.P. in Baltimore. “I know of one employer who said, ‘I don’t care what OSHA says because when we do the post-accident testing, 90% of our people are coming up positive, so we’re going to continue to test.’ And they may be able to argue that before OSHA because they have such a high incidence of use … but who knows whether OSHA would agree.”
Any policy that discourages drug testing not only does not promote safety and health in the workplace, it has the opposite effect with the United States in the midst of its worst opioid crisis, said Eric Conn, founding partner of Washington-based Conn Maciel Carey L.L.P.
“We know this drug crisis is invading the workplace, and yet OSHA is out there pushing rules that scare employers away from drug testing,” he said. “I could not write a more backwards safety and health policy if I tried.”
Employers will still be vulnerable to having their injury and illness data used against them despite the U.S. Occupational Safety and Health Administration’s proposal to roll back parts of its electronic record-keeping rule to protect sensitive employee information.