be prescribed. Under the old rule, the MRO would report both the negative test result and the safety concern at the same time. Please take note, however, that 40
C.F.R. part 40.327 requires that an MRO must report drug test results and medical information learned as part of the verification process even without the donor’s consent if, in his or her “reasonable medical judgment,” one of the following exists: 1. Te information obtained during the verification process is likely to render the person unqualified for safety-sensitive performance, and/or
2. If the information obtained during the verification process “indicates that continued performance by the employee of his or her safety- sensitive function is likely to pose a significant safety risk.”
6. OSHA post-accident requirement. Many believe that OSHA has now pulled out of the post-accident testing world. Tat is not so! If your testing program requires testing of only the injured worker in a post-accident situ- ation, you are probably not complying with the October 11, 2018, clarifica- tion memorandum by OSHA.12
Tat
memorandum, sent to regional ad- ministrators and state designees, made clear that OSHA does not prohibit post-incident drug testing. OSHA believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. A post-incident drug testing policy “would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work- related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
www.datia.org
OSHA listed examples of drug testing
that would be permissible. Te one relevant here is the following:
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
Be sure your post-incident (post-
accident or injury) drug testing procedures include testing of all those involved whose conduct may have contributed to the injury and not just the injured worker.
State Rules “In the Weeds”
Just about every state has some nuance, some “less regarded” rule that you should know. Te following are just a few selected examples of these important rules, divided by state and by issue.
By State California:
In addition to a well-known rule in California that random testing is limited to safety and security-sensitive employees,13 there are a few other lesser-known rules: 1. Don’t let an applicant start work be- fore the pre-employment test result is known.14
2. A reasonable-suspicion test unsupported by facts is an unauthorized random test.15
3. Requiring a drug test collection during off-duty hours may be unauthorized.16
4. It is advisable to warn, and get signed acknowledgments of the warning, that the use of medication from a foreign source may cause a positive drug test.17
Hawaii:
1. Anyone that is going to be tested must be given a writen statement of the spe- cific drugs to be tested and a statement
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