Two New Developments That Could Affect Your Drug Testing Policy and Practice

Kegler Brown E-mployment Alert

Smart Summary for Employers

  • Update your drug-free workplace policy to include medical marijuana usage
  • On November 1, 2016, a new OSHA Regulation will make automatic drug testing after an accident a violation

Do You Need To Update Your Drug Testing Policy?

Two new developments that could affect your drug testing policy and practice are on the imminent horizon.

1. Medical Marijuana – Ohio’s new medical marijuana law becomes effective in early September. The Ohio law has a number of provisions that are very advantageous for employers. Among those provisions are ones that state that employers can still maintain drug-testing programs and can still prohibit the use of marijuana. With the passage of the new law, Ohio employers will need to determine how they will handle prescribed medical marijuana usage. There is no requirement that an employer exempt medical marijuana usage from its drug-free workplace policy. However, if an employer wants to prohibit employees from using or being under the influence of marijuana, and/or to terminate or discipline employees based on marijuana detection in a drug test, they should amend their existing drug-testing policy to specifically enumerate medical marijuana and make it crystal clear that use of medical marijuana, even if prescribed, is prohibited.

2. OSHA Regulation – In May, 2016 OSHA amended its recordkeeping rules. Normally, this would not be momentous. However, through some tortured logic, OSHA has concluded that maintaining a program that tests for drug use after an accident somehow impedes or “chills” employee reporting of accidents and, for that reason, automatic drug testing rules violate the OSHA law (You can’t make this stuff up).

OSHA’s new Regulation requires that post-incident drug testing is to be limited to circumstances where (a) there is a “reasonable possibility” that drug use by the affected employee was a “contributing factor” to the accident or injury, and (b) that the drug test can accurately identify that an impairment exists and was caused by drug use.

Presumably, OSHA will cite employers for maintaining or requiring post-accident testing without considering the unique circumstances of every accident and injury.

The new Regulation was initially scheduled to go into effect on August 10, but OSHA has delayed enforcement until November 1, 2016. Further Guidance may become available between now and the November 1 effective date. However, if you intend to maintain a drug‑testing program, you will need to consider whether to amend it to incorporate OSHA’s new requirements.