Enforcement of an OSHA rule related to injury and illness reporting will be delayed until Dec. 1 in Virginia and around the country. The delay is designed to provide time to clarify confusion as to drug testing employees after a workplace accident. One issue brought up by employers is that employees cannot be retaliated against for reporting injuries in the workplace according to the OSHA rules adopted earlier in 2016.
However, requiring an employee to take a drug test may discourage injured workers from filing a report in the first place. OSHA provided guidance saying that it would not cite employers from conducting drug tests that are mandated by state or federal law. Employers will also not be punished for drug testing employees after reporting an injury if there is an objective reason to do so.
The OSHA rule does not prevent employers from drug testing employees for other reasons. Employers are encouraged to ask themselves many questions prior to creating a post-injury drug testing program. In some cases, automatic testing will not be needed. If a testing program is created, it may be worthwhile to first determine if there is a reasonable basis for knowing if drug use contributed to the accident. Furthermore, testing should be limited to the injured employee or others who may have played a role in the accident.
Workers' compensation benefits are made available to eligible employees who are injured on the job, in most cases even if the accident was due in whole or in part to their negligence. However, some employers will often try to dispute or deny such a claim, and thus those workers may want to have legal representation at an appeals hearing.