If you employ safety-sensitive workers, you know about the inevitability of accidents, even if your drug and alcohol testing policy is solid. What do you do when you get that dreaded call that one of your employees has been involved in an accident? Is post-accident drug testing always required?
According to the U.S. Department of Labor, drug and alcohol use at work may contribute to 65% of on-the-job accidents. Substance abuse contributes to 38-50% of workers’ compensation claims.
Businesses not regulated by the federal government get to decide how you handle post-accident drug and alcohol testing. Your post-accident protocol must be clearly stated in your drug and alcohol policy. However, according to OSHA (Occupational Safety and Health Administration), automatic post-accident drug testing is illegal.
OSHA post-accident testing rules
In May of 2016, OSHA published rule 29CFR parts 1904 and 1902. The rule says that employers cannot deter proper reporting or retaliate against employees for reporting workplace injuries. This includes using drug testing or the threat of drug testing to deter reporting workplace injuries. OSHA determined that automatic post-injury drug testing policies deter proper reporting. Employers may, however, require an employee to submit to a post-accident drug and alcohol test if they have good reason to believe drug or alcohol use likely contributed to the accident.
Lobdock Impairment Detection writes drug & alcohol testing policies for businesses. Contact us for more information.
DOT Post-Accident Testing Policies
If you fall under the DOT (Department of Transportation) regulations, you already know about drug and alcohol testing. Although there are several regulators under the DOT (FMCSA, FAA, FTA, USCG, FRA, PHMSA), most post-accident tests fall under the FMCSA (Federal Motor Carrier Safety Administration) rules because that agency covers the largest number of safety-sensitive workers.
Post-accident drug and alcohol testing helps determine if drug or alcohol use contributed to unsafe work practices. The DOT requires mandatory drug and alcohol testing after an employee is involved in an accident under certain conditions. The easiest way to remember those conditions?
Nurse – If the accident caused injuries requiring medical attention away from the scene
Hearse – If the accident involved a fatality
Wrecker – If at least one vehicle sustained damage that required towing.
Even under these three conditions, your employee may not have to take a post-accident drug and alcohol test. If your driver was not found to be negligent, he may not be required to submit to the post-accident test. However, the following scenarios are examples of when post-accident testing is required:
- If someone involved in the wreck suffered bodily injury requiring immediate medical treatment away from the scene, AND your driver was ticketed
- If there was a human fatality, AND your driver was ticketed
- If any motor vehicle involved in the accident was damaged and had to be towed away, AND your driver was ticketed
All of these scenarios require a post-accident drug and alcohol test.
FMCSA Post-Accident Drug Testing Procedures
If your driver is involved in an accident that requires post-accident drug testing, you as the employer are required to get that driver tested as soon as possible.
- Alcohol testing must be conducted within 8 hours of the accident
- Drug testing must be conducted within 32 hours
If you’re not able to complete testing within the 8 hours for alcohol and 32 hours for drugs, you must document and keep records stating the reason the tests weren’t administered within those parameters.
Driving after testing
According to the FMCSA, driver may continue to drive while waiting for results of the controlled substances test, as long as law enforcement officials have not imposed any restrictions.
Type of test
The federal government only allows breath alcohol tests and urine tests conducted by a DOT certified collector. Businesses not regulated by the federal government can choose between urine or oral fluid testing.
DOT rules state you are not allowed to require a blood alcohol test, even if the breathalyzer is broken. Instead, document the reasons why a breath alcohol test was not completed.
Although hair testing shows a long-term pattern of repetitive drug use, it isn’t appropriate for post-accident drug testing. Again, the purpose of the post-accident test is to rule out drug or alcohol use as the cause of the accident. Hair testing doesn’t indicate current impairment.
Send to the collection site
You, as the employer must provide the BAT (Breath Alcohol Technician) or Collector with information about the test including:
- What type of test (breath, urine, fluid)
- DOT or non-DOT
- Reason to test (random, reasonable suspicion, post-accident, return to duty, follow-up, and pre-employment are the only reasons the DOT allows for drug or alcohol testing)
- Contact information for the DER (Designated Employer Representative)
Even if a post-accident substance test determined drug or alcohol use, it alone cannot prove use caused the accident.
Post-Accident Testing Procedures Under other DOT Agencies
Although most safety-sensitive workers are regulated by the FMCSA, the FAA, PHMSA, and FRA regulating agencies have slight variations on the post-accident drug and alcohol testing procedures.
FAA Post-Accident Drug Testing
Safety sensitive employees regulated by the FAA (Federal Aviation Administration) include:
- Flight crew members
- Flight attendants
- Flight instructors
- Aircraft dispatchers
- Aircraft maintenance crew
- Ground security coordinators
- Aviation screeners
- Air traffic controllers
- Operations control specialists
Drug and alcohol testing must be done as soon as after the accident as possible but no later than 32 hours after the accident. Testing is only allowed if it appears drug or alcohol use contributed to the accident, or it can’t be ruled out right away. If it’s not possible to test within 32 hours, you must keep a detailed record as to why.
PHMSA Post-Accident Drug Testing
Safety sensitive employees regulated by the PHMSA (Pipeline & Hazardous Materials Safety Administration) include operator or contractor employees performing the following functions:
- Emergency response
According to PHMSA policy, drug and alcohol testing must be done within 2 hours, but no later than 32 hours after the accident. If testing can’t be done within 2 hours, document why. If testing can’t be done within 32 hours, keep a detailed record explaining why. Testing is only allowed if it appears drug or alcohol use contributed to the accident, or it can’t be ruled out right away.
FRA Post-Accident Drug Testing
Safety sensitive employees regulated by the FRA (Federal Railway Administration) include:
- Locomotive engineers
- Locomotive hostlers/helpers
- Utilities employees
- Train dispatchers
The FRA requires urine and blood specimens to be collected from surviving employees as well as tissue from deceased employees. See 49CFR Part 219 Subpart C for scenarios requiring drug and alcohol testing. Generally, the following scenarios require a post-accident drug and alcohol test:
- Major train accident
- Impact accident
- Fatal train incident
- Passenger train accident
- Human-factor highway-rail grade crossing accident/incident
Specimens must be collected as soon as possible after the accident, preferably within 4 hours but no longer than 24 hours. If testing cannot be done in that time frame, carefully document the reasons why.
Be prepared before an accident
We recommend carrying a post-accident kit in your vehicle that includes:
- Vehicle registration
- ID cards
- Road flares
- First aid kit
- Basic tool kit
- Pad & paper
Accidents are, at the very least, unsettling. It can be hard to remember what to do in those first chaotic moments. Keep a checklist handy so you or your employees know what to do and don’t miss a thing.
Download your FREE post-accident checklist so you’re ready for the inevitable.
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