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Workers' compensation claims may benefit from new OSHA rules

Dec. 1 marks the beginning of the enforcement of a new Occupational Safety and Health Administration policy for employer-mandated drug testing of employees. These will apply to many employers in New Hampshire. Other rules go into effect at that time, including anti-retaliation and anti-discrimination rules. The impact, if any, of the new rules on the employee's right to collect workers' compensation benefits will be revealed by future experience with the rules. 

In general, it will be tougher for an employer to impose drug testing after a workplace accident. Employers are being instructed by OSHA to limit post-incident testing to circumstances where the use of drugs is likely to have figured into causing the accident, and only to use drug tests that can accurately identify impairment caused by drug use. It is unclear whether there are tests available to handle that kind of preciseness in determining impairment caused by drug use.

The essence of the new rule is that accidents that have no normal or visible connection to drug usage do not justify taking drug testing. Many large employers have been used to administering drug testing after any incident, but procedures and policies will now have to change. In addition, a company's handbooks and other policy statements must be re-written for the future.

For example, an accident with a forklift or a fall on slippery stairs are not going to conjure up thoughts of drug usage and will not justify drug testing. The practice of drug testing for any incident can result in true hardship for workers, especially if the results are used by workers' compensation insurers to try and block benefits for injured workers in borderline cases. The new policy will basically require something akin of probable cause to take a drug test after a work injury occurs in New Hampshire and elsewhere.

Source: ltlmagazine.com, "Employee drug testing under the new OSHA rules", Pamela Tabar, Dec. 7, 2016

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