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OSHA decides post-accident drug testing deters injury reporting

Pennsylvania employers that conduct a drug test after any workplace accident could be in violation of a rule issued by the Occupational Safety and Health Administration. The agency has indicated that automatic drug testing after a workplace accident or injury deterred employees from reporting workplace safety incidents.

OSHA has not entirely banned the use of drug tests after an accident, but a company's testing policy must be based on a "reasonable possibility" that an illness or injury might have resulted from an employee's drug use. Any drug test used should also have the ability to accurately determine if the presence of a drug in a person's system caused impairment at the time of the accident.

Employers that continue to make employees involved in an accident undergo drug testing every time could arouse the attention of regulators and incur penalties. The OSHA rules that became effective in August 2016 require employers to establish reasonable procedures for employees who need to report illnesses and injuries. The procedure cannot include requirements that might discourage an employee from reporting because of fear of retaliation. A failure to comply with the OSHA rule could result in the employer incurring serious financial penalties, with a fine of at least $12,000 for each violation.

It is unlawful for an employer to retaliate against an employee who has filed a claim for workers' compensation benefits, and the OSHA rule is intended to remove another impediment that companies often impose. A worker who is having a problem with a claim might want to have the assistance of an attorney during the process.

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