Key Considerations for Employers Implementing Post-Accident Drug Tests

In today's evolving workplace landscape, ensuring employee safety and compliance with regulatory standards is paramount for employers. One critical aspect of this responsibility involves the implementation of post-accident drug testing policies.

Such tests not only serve to uphold a safe and productive work environment but also protect businesses from legal liabilities and financial repercussions associated with workplace accidents. However, the process of instituting a post-accident drug testing program is multifaceted and requires careful consideration of various factors. Employers must navigate legal frameworks, balance employee rights with organizational safety, and establish clear protocols that align with their company culture and operational needs. Moreover, effective communication and training are essential to foster a transparent and supportive environment where employees understand the rationale behind testing procedures.

This article will explore the key considerations employers should take into account when implementing post-accident drug tests, including legal compliance, the impact on employee morale, the importance of clear policies and procedures, and the role of consistent education and training in fostering a culture of safety. By addressing these factors thoughtfully, organizations can create a balanced approach that prioritizes both employee welfare and workplace safety.

What About a Workplace Accident?

If an employee at your company has been involved in a workplace accident, you may choose to conduct a post-accident drug test to determine if drugs or alcohol were a contributing factor. Did you know that 15.4% of U.S. adults have a substance use disorder? At Readi Collect, a Labworks USA partner, they coordinate post-accident drug tests for employers throughout the U.S. in a variety of industries including logistics, construction, and transportation. Here’s what you should know about incorporating post-accident drug testing in your workplace.

Understanding Post-Accident Drug Testing

Post-accident drug testing refers to the process of administering drug and alcohol tests to employees involved in workplace accidents or incidents occurring on company premises. For private employers not subject to regulatory oversight, these tests can be initiated when there is a suspicion that an employee involved in the accident may have been impaired by substances. On the other hand, employers governed by the Department of Transportation (DOT) are mandated to perform post-accident tests for commercial driver's license (CDL) holders under specific conditions outlined below.

The Significance of Post-Accident Drug Testing

Here is how Post-accident drug testing serves several critical functions. Take note of the pointers below.

Enhancing Workplace Safety 

Implementing post-accident drug testing policies can discourage substance use among employees. It thereby contribute to a safer work environment and lowers the incidence of accidents.

Mitigating Liability Risks 

Employers may utilize evidence of employee intoxication as a defense against workers' compensation claims. These are are filed by individuals injured at work while under the influence of drugs or alcohol.

Reducing Insurance Premiums 

Conducting post-accident drug tests can help lower accidents and associated claims. It is ultimately helping employers maintain lower insurance costs.

Circumstances Requiring Post-Accident Drug Testing

• Any accident resulting in a fatality, irrespective of fault.
• Incidents involving bodily injury that necessitate medical attention, where the CDL driver was cited.
• Accidents causing property damage that require towing, also involving cited CDL drivers.

To comply with DOT regulations, employers must administer drug tests within 32 hours following the incident and conduct alcohol tests within eight hours.

Federal and State Regulations for 2022

Various federal agencies oversee post-accident drug testing guidelines, which can vary at the state level. Employers should consult legal counsel to understand the specific regulations applicable in their state.

Federal Guidelines 

OSHA 

In 2016, the Occupational Safety and Health Administration (OSHA) established regulations that were interpreted by many employers as prohibiting post-accident drug testing. However, in 2018, OSHA clarified that such testing is permissible if included in a comprehensive post-incident drug testing policy or safety incentive program, as long as it is not punitive towards employees reporting workplace injuries or illnesses.

FMCSA 

According to 49 CFR § 382.303, transportation carriers must conduct post-accident drug testing for CDL drivers involved in: Fatal accidents, regardless of fault. Injury-related accidents requiring emergency medical assistance when the driver is cited. Property damage incidents requiring towing when the driver is cited.

FAA

Per 14 CFR § 120.109, employers regulated by the Federal Aviation Administration (FAA) must administer post-accident drug testing for employees in safety-sensitive roles if their actions are believed to have contributed to an accident. Testing must occur within 32 hours for drugs and eight hours for alcohol.

Implementing Post-Accident Drug Testing

Information regarding post-accident drug testing should be clearly outlined in the company’s drug and alcohol policy and shared with all employees. Testing should be performed in a secure location, such as a medical clinic or authorized testing facility, ideally within 12 hours of the incident. Employers can partner with organizations like Readi Collect to effectively manage post-accident drug testing processes.

Industry-Specific Post-Accident Drug Testing Procedures

For Employers Not Under DOT Oversight 

Private employers must ensure their post-accident drug testing procedures are explicitly detailed in their drug and alcohol policies. OSHA permits such tests if they are integrated into the company’s policy and are not used to retaliate against employees for reporting incidents.

For FMCSA-Regulated Employers 

If a CDL driver is involved in an accident requiring post-accident drug testing, testing must commence promptly. Alcohol testing must occur within eight hours, while drug testing must be completed within 32 hours. If tests cannot be conducted within these timeframes, documentation outlining the reasons must be maintained.

CDL drivers may continue to operate while awaiting the results of their post-accident drug test unless legally restricted by law enforcement. Tests must be urine or breath tests conducted by a DOT-certified provider, as blood tests are not authorized under DOT regulations. Should a breathalyzer be unavailable, documentation explaining the absence of the test is required.

Requesting a test? Employers should provide the collector with the following information:

• Indication that it is a DOT test
• Type of test (urine or breath)
• Confirmation that it is a post-accident test
• Contact details for the designated representative

For FAA-Regulated Employers 

Employers under FAA regulations are required to conduct post-accident drug tests on safety-sensitive employees involved in accidents, particularly if their substance use is suspected to have contributed to the event.

So what does safety-sensitive positions include? Safety-sensitive positions include:

• Air traffic controllers
• Flight attendants
• Operations control specialists
• Flight crew members
• Aviation screeners
• Maintenance personnel
• Aircraft dispatchers
• Ground security staff

Testing must be executed as soon as feasible, ideally within 32 hours of the incident. Testing is permissible only if it is reasonably believed that the employee's drug or alcohol use may have played a role in the accident. If testing cannot be completed within this timeframe, the rationale must be documented and retained.

Guidelines for Employers Subject to Oversight by the Pipeline and Hazardous Materials Safety Administration (PHMSA)

Employers under PHMSA jurisdiction are required to perform post-accident drug and alcohol testing when an incident occurs involving an employee in a safety-sensitive role, particularly if there is a concern that substance use may have played a role in the accident or cannot be definitively excluded. Safety-sensitive positions encompass roles in emergency response, maintenance, and operational activities.

Testing should be conducted within two hours of the incident, and in no case later than 32 hours thereafter. If testing cannot be completed within two hours, it is essential to document the reason for the delay. Should testing not be possible within the 32-hour window, a comprehensive record of the reasons must also be maintained.

Guidelines for Employers Regulated by the Federal Railway Administration (FRA)

Employers governed by FRA regulations are obligated to conduct post-accident drug testing for certain safety-sensitive personnel. This includes but not limited to:

• Train Dispatchers
• Operators
• Signalmen
• Utility Personnel
• Locomotive Helpers
• Switch Operators
• Conductors
• Trainmen
• Locomotive Engineers

FRA mandates that post-accident drug tests be carried out following specific types of incidents. It includes:

• Passenger train accidents
• Fatal train accidents
• Impact incidents
• Significant train accidents
• Railroad crossing accidents influenced by human factors

It is critical to collect blood and urine samples from both deceased and surviving safety-sensitive individuals as promptly as possible.

Samples should ideally be collected within four hours or, at the latest, within 24 hours after the accident. If collection within these timeframes proves impossible, a detailed justification must be documented and retained.

Establishing a Post-Accident Drug Testing Policy

Incorporating a post-accident drug testing policy into your organization’s broader drug-free workplace initiative is essential. This policy should articulate its purpose, include a clear policy statement, define controlled substances, outline the implementation process for post-accident drug testing, address the handling of employees with valid prescriptions, and provide an acknowledgment section for employees to confirm they have received and understood the policy.

Sample Post-Accident Drug Testing Policy

[EMPLOYER NAME] Post-Accident Drug Test Policy

STATEMENT OF PURPOSE

[EMPLOYER NAME] is implementing this post-accident drug test policy to promote workplace safety and is providing a copy to all employees to clearly define the types of behavior that can result in employee discipline up to and including termination when an employee violates this policy.

DEFINITIONS

Controlled substances are scheduled drugs. This was found in the Controlled Substances Act found at 21 USC §801 et. seq.

STATEMENT OF POLICY

[EMPLOYER NAME] prioritizes workplace safety for all employees and managers. To ensure the work environment remains safe, [EMPLOYER NAME] prohibits the use of alcohol or controlled substances in the workplace. Employees must arrive for work without having alcohol or controlled substances in their systems. [EMPLOYER NAME} also prohibits employees from possessing alcohol or controlled substances anywhere on the [EMPLOYER NAME’S] property.

IMPLEMENTATION OF THE POLICY

Following a workplace accident that results in injuries, fatalities, or property damage, employees must immediately report what happened to their supervisor and follow the supervisor’s instructions about completing an accident report. If alcohol or drug use is suspected or can’t immediately be ruled out, the employee will be directed to a testing center for a medical evaluation and a post-accident drug test. The employee must provide a sample of their blood, urine, or breath to test for the presence of controlled substances or alcohol.

The results of the post-accident drug and alcohol test will first be provided to the employee and then to [EMPLOYER NAME]. If the accident causes injuries requiring the employee to undergo emergency treatment, the employee consents to have a urine or blood sample collected and analyzed to check for the presence of controlled substances or alcohol.

REFUSALS

If an employee refuses a post-accident drug test, [EMPLOYER NAME] will treat the refusal as if it was a positive test. The employee will be subjected to discipline up to and including termination for a refusal or a positive test.

EMPLOYEES LEGALLY PRESCRIBED CONTROLLED DRUGS

An employee who has a valid prescription for a controlled drug from their physician and who has taken the medication as prescribed will give the information to the testing collector when they arrive for the post-accident drug test. An employee who takes prescription medications as prescribed and who has informed management that they need to take their medication will not face discipline under this policy subject to an examination of the facts surrounding the workplace accident.

ACKNOWLEDGMENT

[PRINTED EMPLOYEE NAME} acknowledges I have received, reviewed, and understand the Post-Accident Drug and Alcohol Testing Policy from {EMPLOYER NAME] on [DATE]. I understand that I must report any workplace accident in which I am involved to my supervisor. If the accident involves an injury, fatality, or property damage when alcohol or drug use can’t immediately be ruled out or is suspected, I will submit a urine, breath, or blood sample to be tested for alcohol or controlled substances. I agree that the results of these tests will be provided to both me and to {EMPLOYER NAME].

READI COLLECT: Your Partner for Post-Accident Drug and Alcohol Testing

Post-accident drug tests can increase workplace safety while protecting you against liability and higher insurance costs. Readi Collect App, is the Fastest and Most Reliable Onsite Drug and Alcohol Test Collections. They use a patented technology to connect your employees to a nationwide network of professional collectors with our mobile app. Making this the best way to meet impossible deadlines for critical testing like DOT post-accident.

If you are required to comply with Department of Transportation regulations, this app offers unprecedented collector response time and real-time reporting, making it easier than ever for employers to conduct post-accident testing within the DOT regulation timelines. If you are interested to know more about Readi Collect, reach out to them here.