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Updated OSHA Guidance on Post Accident Drug Testing

Last year, OSHA issued guidance regarding Post Incident or Post Accident drug testing which largely discouraged the practice. We have just been provided clarification indicating such testing is allowable, even encouraged:

The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”

Full text of recommendations may be found here:  OSHA Guidance on Post Accident Drug testing, October 2018

It is essential that your policy regarding drug testing be specific and carefully worded to assure you can demonstrate the purpose of post-incident testing is part of such a safety program, and not to discourage reporting of incidents. Contact CMR for consultation on your policy.

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OSHA says most Post-injury drugs testing is unlawful

In a ruling to take effect November 1, 2016, OSHA bans blanket testing after a workplace injury. Company policies which require all workers to be tested when seeking treatment for a work injury are considered “retaliatory” by OSHA, and so are not allowable.

This ruling does not apply to DOT or other government regulated testing.

Post-injury testing WILL be allowed IF “drug use is likely to have contributed to the accident and for which the test can accurately identify impairment.”

Companies with policies requiring post-injury drugs testing should re-evaluate and revise with consideration of this ruling. Consultation services are available through CMR.

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Company policy on substance abuse

Revised 10/31/2018 for clarity and completeness

Workplace Drug Testing must be based on a formal company policy.

Many employees are subject to testing for illicit drugs use and alcohol intoxication as a condition of employment. It is important for employers who require such testing to have in place a written policy defining who will be tested, under what circumstances, by what means, and with what response to various possible test results. This policy should be developed with medical advice and legal input, based on the particular goals of the company.

Policy development is a continuing process.

Your drug testing policy should be developed with medical advice and legal input. It should be based on the particular goals for the company. This is not a policy to be created and then left to rest. Substance abuse and public policy are dynamic, so drugs testing policies must keep pace. There are new drugs of concern over time. Testing methods evolve. Prescription drugs and quasi-legal marijuana are pervasive issues. If an employer is required by federal or other regulations to have drugs testing performed, there may be more or less clearly defined procedures.

The United States Department of Transportation (DOT) and other federal agencies have very specific policies and procedures, which serve as a model for non-mandated testing. These policies generally ignore legally prescribed but nonetheless potentially problematic substance abuse issues in the workplace. Screening for marijuana use is more heavily weighted compared to others, in large part due to the persistence of THC compounds for longer periods of time than other drugs.

Specify every aspect of the drug testing process

It is important to be comprehensive and detailed regarding all issues involved with drug testing. These include trigger events for testing, methods of specimen collection, what drugs are tested, what constitues a positive result, and how results get reported.

Reasons for drug testing and/or alcohol tests

The reasons for testing may include pre-employment, random, post-accident, reasonable suspicion, and return to duty or follow-up testing after a violation or rehabilitation. The extent to which each of these may be useful or whether legally allowed, depends on your goals and legal jurisdiction.

Drug testing methods must be described clearly and completely.

Policies specify the methods of testing. If a specimen of body fluid or hair is to be collected, the policy should specify by whom and by what means such collection should take place.  When there are problems with collection, like a refusal to provide the specimen, or attempts to substitute or sabotage, a process should be in place to respond. For example, suspicious behavior during a urine collection may trigger an observed collection.

Medical Review of Test Results

Results of tests from the laboratory must be interpreted in a medically sound fashion, ideally by a physician, and with no unnecessary compromise of the privacy of tested employees. Federally mandated testing requires a specifically trained and certified physician, a Medical Review Officer (MRO) receive all test results. The MRO contacts the employee to discuss any  results “confirmed positive” by the laboratory, prior to reporting to the employer.  This allows the employee to provide medically legitimate explanations for any positive results. The MRO will advise the employer only if there has been  drugs used illicitly or if there is a safety issue with medication used legally. Only then is the result considered a “verified positive” and reported to the employer.

“On-site” rapid testing is preliminary at best

Many companies utilize “rapid” or “onsite” testing, where a result is obtained immediately and usually by persons with little or no training. If such a test shows a negative result, and if it is correct, hiring might proceed immediately. If the “rapid” test is “not negative”, it must be submitted to the laboratory before personnel decisions are made. Such decisions should be deferred until a laboratory confirms (or contradicts) the positive and a Medical Review Officer verifies there is no medically legitimate alternative explanation for the findings.

What is a positive test result? What are the consequences?

Company policy must specify what constitutes a positive result. Then, it must be clear what consequences will follow a confirmed positive test.

Create or update your company drug and alcohol policy now.

Companies testing for illegal use of drugs and alcohol without a formal policy in place risk ineffective testing and damaging litigation. HR managers and others responsible for such policies may wish to consider periodic consultation with a qualified Medical Review Officer and an attorney, to assure your policy is up to date, legally and medically accurate.

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Observed collections in DOT urine drugs testing

(Revised for readability Nov 10 2018)

Observation is either required, or not allowed, in mandated testing.

Under some circumstances, collection of urine specimens for drugs screening must be observed directly by collection personnel. Observation must be by a person of the same gender as the testing subject. This is an important factor in choosing a collection facility. See related post Selection of Specimen Collection and Testing Sites.

The employer is responsible to assure observation is done always, and only, when required.

For commercial drivers and other federal employees, observed collection is required if the DER (Designated Employer Representative) directs the collector to do so. The DER is required to have the collection observed for the following situations. Otherwise, the DER is not allowed to have the collection observed.

Observation is required WHEN:

  • for Return to Duty after completing Substance Abuse Professional (SAP) requirements following a positive test or refusual
  • for Follow-up after Return to Duty, as require by SAP
  • If ordered by the MRO ( Medical Review Officer )
    • invalid specimen reported from lab
    • dilute specimens meeting certain criteria

Irregularities during specimen collection

In the course of urine specimen collection, if the following apply, the collector must proceed with a directly observed collection

  • The collector “observes materials brought to the collection site or the employee’s conduct clearly indicates an attempt to tamper with a specimen” (see §§40.61(f)(5)(i) and 40.63(e) );
  • The temperature on the original specimen was out of range (see §40.65(b)(5) ); or
  • The original specimen appeared to have been tampered with (see §40.65(c)(1) ).

The procedures for observed collection are specified in http://www.dot.gov/odapc/dot-direct-observation-procedures.

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Selection of Specimen Collection and Testing Sites

In urine drugs testing, collection of the specimen is critically important . If drivers are in Northern California and able to have testing and specimen collection performed at our parent company, Occupational Health Services, you can be assured that all collectors and alcohol testing technicians are qualified, experienced, and certified. However, if testing might be needed at another location, you should evaluate possible collection and testing sites in advance.

In selecting a collection and testing site, consider the following:

  • Be sure to know the facility’s specimen collection hours.
    • There will generally be a cut off time for collections, earlier than the closing time of the clinic. This is to allow up to three hours for provision of a specimen, as required by DOT/FMCSA regulation.
    • At OHS, collections must begin before 3:00 PM
  • Determine if there are collectors available of appropriate gender, in case an observed collection becomes necessary.
  • Assure collectors have been trained and alcohol testers are certified.
  • Set up an account or otherwise make advance arrangement for payment. Specimen collection and alcohol testing is free of additional charge at our Lodi location only.
  • Make arrangements Custody and Control Form (CCF) to reflect laboratory and MRO information for Central Medical Review. The driver may carry a preprinted copy from us, or the collection site may store some copies for you, or alter some of their own to reflect CMR data.
  • Designated Employer Representative (DER)  information should be provided to the site.
  • Notify the collection site and CMR when the employee is expected to arrive at the collection site. Remember, once informed of a follow-up or random drugs test to be taken, the employee must proceed immediately and directly to the collection site.