By working safely and avoiding injury, you, like millions of other workers in Maryland, will hopefully be greeted by your loved ones at the end of every workday. That is the theme of Chesapeake Employers' new 30-second commercial that began airing on cable TV in October.

There seems to be some confusion as to whether  OSHA's Final Rule on its Recording and Reporting Occupational Injuries and Illnesses regulation allows or prohibits employers from using post-accident drug testing as part of a workplace accident investigation.

The goal of the Final Rule, which will become effective January 1, 2017, is to gain as accurate reporting of work-related injuries as possible. Chesapeake Employers believes the use of blanket post-accident drug testing policies falls under the section focused on limiting discrimination against employees for reporting work-related injuries or illnesses.

The Final Rule does not impose a ban on drug testing, however, it "prohibits employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses." It also suggests employers should "limit post-accident 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."

Chesapeake Employers has been in contact with the Maryland Department of Labor, Licensing & Regulation's Division of Labor and Industry on the potential impact to policyholders. Clarification continues to be developed at the federal level relative to what an acceptable post-accident drug testing program should look like.

The common theme is that an appropriate program would be based on a determination of need according to accident circumstances. Since each accident's circumstances are unique, we suggest documenting the decision to proceed with drug testing. Any changes to an employer's drug testing program should be reviewed by his/her employment attorney before implementation. We will keep you apprised of any developments as we are made aware of them.

This final rule becomes effective on January 1, 2017, except for 1904.35 and 1904.36, which became effective on August 10, 2016.

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