OSHA: Yes, OSHA's new stance on alcohol and drug testing is that employers can test, but they may not use drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. This is not a new concept, but now there is concrete verbiage in the final rule.
WC: Yes, In Wisconsin the Workers Compensation Laws have almost always had information regarding drug testing, WC law includes a penalty system built in for accidents caused by drugs or alcohol. Prior to March 2, 2016 this was called the 15% rule, where a deduction of 15% was given on indemnity benefits when causation was proven. After March 2, 2016 the law actually supports full denial of indemnity benefits when causation is proven.
OSHA: Structure your impairment testing in a way that shows it has merit. The drug test should be proving a correlating cause to the incident that resulted in an injury. You may still require employees to submit to an impairment screening as long as it is plausible that the impairment caused the incident.
Exhibit A: repetitive motion injury, no merit.
Exhibit B: jumping the forklift off the dock, merit.
WC: If you are wanting to comply with the WC laws regarding a drug and alcohol testing policy it is important that the correct policy language is in place within your employee handbook.
HNI’s team of legal experts recommends policy language such as:
“If an employee violates the company’s drug and/or alcohol policy and such use and violation causes or was a contributing factor to the employee’s injury, temporary disability, permanent disability or death, then neither the employee nor the employee’s dependents may receive any benefits or compensation under the state worker’s compensation law. This does not pertain to the cost of any medical treatment which still remains the responsibility of the company.”
OSHA: Eliminate the blanket impairment screening policy and verbiage from your written policy that state all employees involved in a workplace injury must submit to a screening. The verbiage may look more like this, “Each injury will be investigated to the fullest extent and if it is determined that there is probable cause of impairment that lead to the incident, employees will be required to submit to an impairment screening.”
Also, this must be a consistent policy and there should be no bias on which employee must submit to the screening. If your star employee get in the same type of incident as your not so star-star employee, and impairment may have been a cause, both employees should be screened.
WC: The Workers Compensation law will not penalize you for having a drug and alcohol testing policy. They do however have a mandatory reporting element for work injuries requiring medical treatment or lost time. Like OSHA, testing cannot prevent the reporting of a workplace injury. This relates to the timeliness of reporting those injuries and we would advise reporting them as soon as you are aware of the incident to avoid penalties.
Consistency will be a key factor in remaining compliant with your drug and alcohol policy under Worker's Comp and OSHA laws. Be proactive in reviewing your current policy and make sure you are clear with your process before you are faced with a policy violation.