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California employers who require drug and alcohol testing following a workplace accident should revaluate their policies in light of the Occupational Safety and Health Administration’s (“OSHA”) final ruling on employer’s electronic reporting of workplace injuries.  81 Fed. Reg. 29624.

OSHA now requires all employers to establish “a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.”  Section 1904.35(b)(1)(i).  Any procedure that would “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness” is not a reasonable procedure.  Section 1904.35(b)(1)(i).

So what does this mean for California employers?

OSHA’s final ruling does not outright ban drug or alcohol testing of employees.  It simply requires that drug and alcohol policies that require post-accident testing be limited to accidents where an employee’s drug use is likely to have contributed to the accident and a drug test can accurately determine the impairment caused by such drug and/or alcohol use.

OSHA further clarified in its comments to the final rule that employers need not be able to identify the suspected drug before testing, but reasonable suspicion that drugs were a contributing factor must exist.

What should Employers do now?

Review Current Policies and Revise Blanket Policies Employers who fail to comply with OSHA’s new rules on drug testing will be subject to hefty penalties.  It is important to review your current drug testing policies to ensure compliance.  Any policy requiring drug or alcohol testing after every accident should be immediately modified.

Determine if Drug Testing Works for You – Drug testing may not work for all employers in all industries.  It is important to determine whether requiring drug testing is even necessary or beneficial for your type of business.

            Determine Compliance Under Federal or State law ­­– Determine what, if any, federal or state laws or regulations your business must also comply with.  OSHA’s new rule does not prevent employers from complying with drug and alcohol testing requirements under federal and state laws and regulations.  For example, transportation companies’ compliance with the U.S. Department of Transportation regulations, which has its own set of rules for drug and alcohol testing, is not in violation of OSHA’s new rule.

Contact your Attorneys – At Garcia & Gurney, ALC, our Pleasanton employment lawyers possess a deep understanding of California’s labor laws and can help you ensure that your policies and contracts are in compliance with every single one of them. Contact our Pleasanton employment law firm at 925-468-0400.

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