Someday soon, your employees will begin asking you whether it’s OK to work under the influence of their prescriptions for medical marijuana. Do you know how you’ll answer them? And what about drug testing after safety incidents? Would OSHA say you were creating a retaliatory environment that discourages workplace accident reporting? If you’re not sure, please read on!
OSHA clears way for consistent post-incident drug testing
OSHA published a rule in 2016 prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. Unfortunately, the ruling appeared to discourage post-incident drug and alcohol testing. Some employers thought it suggested that requiring the testing could be considered retaliatory and would discourage incident reporting. At that time, I advised employers to continue testing as usual. But many employers were confused and pulled back on testing.
In October 2018, OSHA released a clarification that’s consistent with my suggestion. It says employers who test consistently to promote workplace safety and health are in the clear. That’s true as long as they test after all incidents and include all affected employees, regardless of whether an injury or illness is reported.
For example, if one of your employees is involved in a car accident on the job, you should test the driver, even if the driver is not injured. This kind of consistent testing will demonstrate that you’re not just trying to play the “reduce the numbers” game.
If you want to be known as a safe, drug-free workplace, you have to demonstrate zero tolerance for working under the influence. It’s just good business practice – for your customers and for fellow workers.
What about Legalized Medical Marijuana?
Missouri’s recent legalization of medical marijuana sales has brought this topic even closer to home. I’d like to suggest that it doesn’t need to change your policy at all – especially in safety-sensitive workplaces. You don’t currently allow employees to work under the influence of alcohol or prescribed medications that can alter their ability to work safely and efficiently. Now you can simply add medical marijuana to that list of influences.
But what about John in Accounting, who’s taking medical marijuana to maintain his appetite while undergoing cancer treatment? Can you make an exception for him? And should you? The easiest route might be a policy with no exceptions, regardless of the work environment or risk level.
But if you want to carve out special treatment for workers who aren’t in safety-sensitive positions, check with your attorney first. You may need to conduct a job hazard analysis. Even accountants can drop boxes on their toes or make costly financial errors because of the effects of alcohol or prescribed medications. And be sure to document any exceptions you do make.
Consistency Is Critical
The most important guidance I have is to insist on consistency. Make sure your policy is updated and you enforce it the same way every time. And always test all parties involved in an incident, regardless of whether they’re injured. These two practices may be your best defense against any challenges.
By Dennis Collins, CSP, Safety Consultant
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