NEW RULE On Drug & Alcohol Testing
California law has long-afforded for employers to conduct drug and alcohol testing for employees in several situations, such as:
• Pre-employment
• As part of a physical examination
• Under reasonable suspicion
• Random
• Post-accident
However, as each year passes a new law or opinion is provided by a governing agency that narrows an employer’s options for which situations afford an adequate right of privacy to the employee and narrows the acceptable situations in which a test can be performed. For example, the legality of reasonable suspicion and random drug and alcohol testing have been intensely scrutinized in recent years, so much so that these testing programs have been discouraged by the Courts [except testing programs regulated by an official agency such as the Department of Transportation]. The Courts use a balancing test to determine if the employee’s privacy interests are outweighed by the employer’s safety interests. Additionally, it must be determined that the testing program does not dissimilarly impact a group of employees by being harassing or discriminatory.
This year the Occupational Safety and Health Administration (OSHA) published an opinion on its final rule for electronic reporting of workplace injuries as it pertains to post-accident drug and alcohol testing. Although the final rule does not specifically outline limits for post-accident testing, the Administration has commented that required drug and alcohol testing for all reported injuries may be a deterrent “to the reporting of unsafe workplace practices and resulting injuries”. The Administration encourages employers to revise existing testing policies and to limit “testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”
Effective November 1, 2016, OSHA will require compliance with its final rule. Now is the time to review any workplace policy that may need revision. For more information on the final rule, visit www.osha.gov and search for 29 CFR § 1904.35(b)(1)(i).