On May 12th, OSHA published a final rule regarding workplace illness and injury. The rule becomes effective August 10, 2016, and maintains that employers must have an established reasonable procedure for reporting workplace injuries. If the procedure is not reasonable (i.e. a reasonable employee may be deterred from reporting), OSHA may issue citations.
OSHA indicates that mandatory, across-the-board, post-accident testing creates a reporting deterrent for employees. OSHA indicates drug testing policies should limit post-accident testing to situations where drug use is likely to have contributed to the incident and that the drug test itself will accurately identify impairment caused by drug use. This definition would eliminate mandatory marijuana testing since marijuana drug tests identify metabolites for 4-6 weeks and does not test for "impairment" at the time of an incident.
OSHA comments that an employee who believes they may test positive for marijuana or another drug because of use weeks before the incident will be deterred from reporting for fear of the positive drug test result.
Employers should revise their drug test policies to provide for a test to show recent illegal drug use, such as oral fluids testing, and provide that post-accident testing will only occur when reasonable suspicion that drug and/or alcohol use was involved in the incident.