OSHA has a new rule affecting Post-Accident Drug Testing that has been in effect since December 1, 2016 however, there has still been a lot of confusion around what this means. OSHA has imposed new restrictions on long-established PADT practices—these have been incorporated into the “Anti-Retaliation” provisions (29 CFR 1904.35(b)(1)(iv)). OSHA has put these provisions in place because they believe an employee should not be afraid to report a workplace injury out of fear of having to take a PADT. These provisions include language that left many companies wondering how to alter existing PADT programs or to stop conducting them altogether. PADT has been a staple of many workplaces’ practices and is a key tool in determining the root cause of a workplace accident. The “Anti-Retaliation” provisions are now in effect, and here is what you need to know:

 Q: When is a company able to conduct PADT for workplace injuries?

 A: To assist in the root cause analysis of any workplace accident, a PADT should be conducted unless the immediate known facts of the accident indicate that impairment could not have played a role in the accident occurring. The best question to ask yourself when a workplace accident occurs is, “Could the use of drugs have at all contributed to this accident?” If you answer yes, then a PADT should be conducted. The exception to the rule is for injuries that may take a long time to become noticeable—repetitive motion claims.

Example: Barbara is sitting at her desk completing work on her computer—a light fixture falls from the ceiling and injures her. Could the use of drugs have at all contributed to the light falling on Barbara’s head leading her to become injured? The answer is no, a PADT is not necessary.

A: To comply with any Federal or State Law specifying that PADT be conducted.

Example: Department of Transportation Regulations

Q: Can a company perform a drug test on an employee who was involved in an accident, but was not injured?

A: Yes.

Example: The driver of a forklift backs into merchandise in the warehouse but does not get injured. Could the use of drugs have at all contributed to this incident? The answer is yes. Although there were no injuries, a PADT is still necessary to determine the root cause of the accident.

Q: Is it true that a PADT must be able to elicit actual impairment at the time of the accident/injury?  

A: Yes, if you are testing for alcohol. No, for all other drugs. OSHA states that when you are testing for alcohol, you must use currently available technology that will allow you to determine if an employee is under the influence at the time of the accident. This technology will include tests such as blood-alcohol content and breathalyzers. For all other drugs, a standard urine-based drug screen at your chosen medical provider will remain acceptable under this new OSHA rule.