OSHA 300 question
We had an employee who was injured. Our policy (which our comp provider recommends) is to drug and alcohol test. His test came back positive for Marijuana. Also in our policy is a zero tolerance. With the injury he was given both a prescription antibiotic along with some lifting and movement restrictions. Once we received the test results back we sent him home on suspension with the understanding he would be receiving instructions on the next steps.
My question is regarding the 300 log. It was listed initially as a restricted time injury. Since we sent him home (he is scheduled to go back to the clinic tomorrow for a follow-up) would that now make it a lost time?
Comments (8)
It is only a lost-time incident if the lost time is related to the injury/illness itself. If you sent him home due to testing postive on a drug test, then that would not be considered "lost time". However, if he was prescribed days off from the PLHCP (regardless of whether they actually took those days off or not), then it's automatically a lost time injury. In this case, since you sent him home for failing a drug test rather than for healing purposes, it would NOT be considered a lost-time injury.
Regarding the post-incident drug testing (especially involving marijuana), be sure you are complying with OSHA on this. They have fairly strict guidelines on when you can (and can't) conduct post-incident drug testing. In general, they prohibit "blanket" post-incident drug testing in cases where the drug had nothing to do with the incident (to eliminate discriminatory or retaliatory actions to employees).
https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11
Agree with Drew that it's not recordable.
I also reallllly dislike blanket post-incident drug testing. It encourages underreporting of incidents and injuries. Depending on how you handle this, the next time you have a marijuana user get hurt, they're going to think twice about reporting it.
In my opinion you have at least three issues here. First an employee injury. You are not disputing the employee was injured on the job correct? I think you are not. The PLHCP issued prescriptions and restricted work. You have an OSHA Recordable and you are correct putting that on the 300.
Second, the employee had a positive drug test to which you suspended him and sent him home. He is off pending investigation. With pay or not? For several HR reasons I would recommend with pay! As far as OSHA is concerned it is not a lost time unless he is off due to the instructions of a PLHCP.
Third the blanket use of drug-testing. Prior to 2017 my huge corporation had a blanket policy on required drug testing on all accidents! No tolerance as well. Our corporate attorneys along with Ogletree Deakins (huge Employment Law firm) said we were no longer to have a blanket policy for employee drug testing post accidents. They were concerned with discrimination issues and recent edicts from several state EEO Commissions and OFCCP (Office of Federal Contract Compliance - if you are a Federal Government Contactor you know about these guys, they may OSHA look like kitty cats!). We could only do drug tests post accident for cause from that point. Your HR Department better consult Employment Law attorneys if you persist with this policy. You are playing with fire. This also depends on state laws as EEOC is usually a state matter first unless you are a Federal Contractor! As always all such policies must be administered consistently and fairly!
Finally if you are considering Termination be very careful! In my state you risk a discrimination charge under WC for firing someone just because they got injured! That is a HUG No-NO in most State WC Laws! They teach you in HR 101 in college that you never ever fire someone if they are on WC unless you are very very firm ground! A positive Marijuana test post-accident is more like thin ice, especially if Marijuana is legal in your state.