Drug testing injured workers may be considered retaliation

Due to a new OSHA rule on mandatory electronic reporting, some employers may experience problems when drug testing employers after injuries. The use of drug test after a work accident could potentially fall under rules prohibiting employer retaliation against workers. In essence, use of the mandatory screening could result in workers failing to report injuries. OSHA has also taken authority to file retaliation charges against employers, which means that an employee doesn't have to file the charge first for action to be taken.

Drug testing is still considered legal when performed as a condition of hiring or at random. In addition, there are also several exemptions for post-accident testing that are expected to cover the majority of employers. One of the exemptions allows state compensation laws to trump the anti-retaliation regulation. Also, employers are still allowed to drug test to maintain workplace safety in cases where a reasonable suspicion exists of drug use.

Regardless of exemptions, employers in some states are likely to rethink policies that mandate testing of an injured worker. If an exemption is not available, such testing could result in an OSHA investigation and fines. Since workers no longer have to initiate retaliation charges, employers may take extra steps to avoid the appearance of such actions.

The good news for employees is that OSHA may take a more proactive stand in protecting their employment rights. Not all employees are versed on such rules as having to file a retaliation charge within 30 days of an incident. Workers in St. Paul may also be unaware of the full range of actions that constitute employer retaliation. Minnesota residents who suffer from an on-the-job accident or suspect an employer's actions constitute retaliation may seek the assistance of a lawyer experienced in the practice of employment law.

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