If an employee at your company has been involved in a workplace accident, you may choose to conduct a post-accident drug test to determine if drugs or alcohol were a contributing factor.
Did you know that 15.4% of U.S. adults have a substance use disorder?
At iprospectcheck, we coordinate post-accident drug tests for employers throughout the U.S. in a variety of industries including logistics, construction, and transportation.
Here’s what you should know about incorporating post-accident drug testing in your workplace.
What Is a Post-Accident Drug Test?
Post-accident drug testing involves the administration of drug and alcohol tests on an employee when they have been involved in an accident at work or while on the company’s property.
Private, non-regulated employers might choose to conduct this type of test when an employee that was involved in a workplace accident is suspected to have been under the influence of drugs or alcohol.
Employers regulated by the Department of Transportation (DOT) are required to conduct post-accident drug tests on CDL drivers in certain situations that will be explained further below.
Why Is Post-Accident Drug Testing Important?
Post-accident drug testing is important for the following reasons:
1. Improves workplace safety
Post-accident drug testing policies can deter employees from using alcohol or drugs at work, thereby reducing accident rates.
2. Reduces liability
Employers can raise an intoxication defense to a workers’ compensation claim filed by employees who were injured at work while under the influence of alcohol or drugs.
3. Saves on insurance costs
Post-accident drug tests help employers keep their insurance rates low by reducing accidents and resulting claims.
When is a Post-Accident Drug Test Required?
Employers regulated by DOT agencies are required to conduct post-accident drug tests under specific circumstances.
The Federal Motor Carrier Safety Administration (FMCSA) regulates transportation carriers that employ CDL drivers, which includes the bulk of the companies regulated by the DOT.
Under FMCSA rules, post-accident drug tests are required under the following circumstances:
- Accident involving a fatality whether or not the driver was cited
- Accident involving bodily injury required away from the scene when the CDL driver was cited
- Accident involving damage to any vehicle that necessitated towing away from the scene when the CDL driver was cited
To remain DOT-compliant, the employer must conduct post-accident DOT drug and alcohol testing in these situations.
Drug tests must be conducted within 32 hours of the accident, and alcohol tests must be conducted within eight hours.
Post-Accident Drug Testing Laws for 2022
At the federal level, several agencies regulate post-accident drug testing.
State laws vary, so you should check with your legal counsel to learn about post-accident drug testing laws in your state.
Federal Regulations
OSHA
In 2016, the Occupational Safety and Health Administration (OSHA) finalized a rule at 29 CFR § 1904.35(b)(1)(iv) that was widely interpreted by private sector employers to prohibit post-accident drug testing.
However, in 2018, OSHA issued a memorandum clarifying that the rule did not prohibit post-accident drug tests.
Post-accident drug tests are permitted as long as they are included in a post-incident drug testing policy or a safety incentive program, and the employer reasonably suspects the employee is under the influence and does not require the test to penalize the employee for reporting workplace injuries or illnesses.
FMCSA
Under 49 CFR § 382.303, regulated transportation carriers must conduct post-accident drug tests on CDL drivers when they are involved in one of the following types of accidents:
- Fatal accidents regardless of fault
- Injury accidents requiring emergency medical care when the CDL drivers are cited
- Property-damage only crashes requiring towing when the CDL drivers are cited
Federal Aviation Administration
Under 14 CFR § 120.109, employers regulated by the Federal Aviation Administration (FAA) must conduct post-accident drug testing on employees in safety-sensitive positions when their performance contributed to an accident or might have been a contributing factor.
The test must be administered within 32 hours of the accident for drugs or within eight hours for alcohol.
How to Conduct a Post-Accident Drug Test
Information about post-accident drug testing should be included in the company’s written drug and alcohol policies and disseminated to all employees.
Employers should conduct post-accident drug tests in a secure area, such as a hospital clinic, or an off-site testing facility.
Post-accident drug tests should be administered no later than 12 hours following an accident.
Reach out to iprospectcheck to coordinate post-accident drug tests.
Post-Accident Drug Testing Procedures by Industry
Employers Not Regulated by a DOT Agency
If you are a private employer that is not regulated by a DOT agency, you must ensure that your post-accident drug testing procedures are clearly outlined in your company’s drug and alcohol policy.
OSHA does not prohibit post-accident drug tests as long as they are included in your company’s policy and are not used to retaliate against workers for reporting accidents, injuries, or illnesses.
Procedures for FMCSA-Regulated Employers
If you are regulated by the FMCSA, and a CDL driver employee is involved in an accident for which post-accident drug testing is required, you must test the employee as soon as possible.
Alcohol tests must be administered no later than eight hours after the accident, and drug tests must be administered no later than 32 hours following the accident.
If you can’t complete post-accident alcohol or drug testing within these time frames, you must document the reasons and retain records about why you didn’t administer the tests within those times.
A CDL driver can continue driving while the results of a post-accident drug test are pending as long as they have not received restrictions from doing so by law enforcement officers.
The post-accident drug or alcohol test must be a urine test or breath test administered by a DOT-certified provider. Blood tests are not allowed under DOT regulations. If a breathalyzer machine is not working, document why the breath test was not administered.
Provide the collector with the following information:
- That you are asking for a DOT test
- Type of test (urine or breath)
- That it is a post-accident test
- Contact information for your designated representative
Post-Accident Drug Testing for FAA-Regulated Employers
FAA-regulated employers must conduct post-accident drug tests on employees in safety-sensitive positions who are involved in accidents when they are believed to have contributed to them.
The following types of employees are those in safety-sensitive positions:
- Air traffic controllers
- Flight attendants
- Operations control specialists
- Members of the flight crew
- Aviation screeners
- Flight instructors
- Maintenance crew members
- Aircraft dispatchers
- Ground security
Employers must conduct post-accident drug tests as soon as possible and within 32 hours following an accident.
You can only conduct a post-accident drug test if you believe an employee’s alcohol or drug use might have contributed to the accident or if their use can’t be immediately ruled out.
If you can’t complete a test within 32 hours, you must document why and maintain a record of the reason.
Know Before You Hire
Procedures for Employers Regulated by the Pipeline & Hazardous Materials Safety Administration (PHMSA)
Employers regulated by the PHMSA must conduct post-accident drug and alcohol tests when an employee in a safety-sensitive position is involved in an accident and you believe that drug or alcohol use might have contributed to the accident’s cause or can’t be immediately ruled out.
Those in safety-sensitive positions include employees involved in emergency response, maintenance, or operations.
Drug and alcohol tests should be administered within two hours or no later than 32 hours following the accident.
You must document the reason if you can’t complete testing within two hours. If you can’t complete testing within 32 hours, you should maintain a detailed record of your reasons.
Procedures for Employers Regulated by the Federal Railway Administration (FRA)
FRA-regulated employers must conduct post-accident drug tests on the following safety-sensitive employees:
- Train dispatchers
- Operators
- Signalmen
- Utility employees
- Locomotive helpers
- Switch operators
- Conductors
- Trainmen
- Locomotive engineers
Under FRA rules, you must conduct post-accident drug tests after the following types of accidents:
- Passenger train accidents
- Fatal train accidents
- Impact accidents
- Major train accidents
- Railroad crossing accidents involving human factors
Blood and urine samples must be collected from both deceased safety-sensitive employees and surviving safety-sensitive employees as soon as possible.
You should collect samples within four hours or no more than 24 hours following the accident. If you are unable to do so within this time frame, document why and maintain a record.
How to Develop a Post-Accident Drug Test Policy
You should include a post-accident drug test policy as a part of your company’s drug-free workplace policy.
Your post-accident drug test policy should clearly explain the purpose, a policy statement, a definition of controlled substances, how the post-accident drug testing program will be implemented, how employees with valid prescriptions will be handled, and a section for the employee to sign acknowledging they have received, reviewed and understand the policy.
Here is an example post-accident drug test policy:
[EMPLOYER NAME] Post-Accident Drug Test Policy
STATEMENT OF PURPOSE
[EMPLOYER NAME] is implementing this post-accident drug test policy to promote workplace safety and is providing a copy to all employees to clearly define the types of behavior that can result in employee discipline up to and including termination when an employee violates this policy.
DEFINITIONS
Controlled substances are scheduled drugs found in the Controlled Substances Act found at 21 USC §801 et. seq.
STATEMENT OF POLICY
[EMPLOYER NAME] prioritizes workplace safety for all employees and managers. To ensure the work environment remains safe, [EMPLOYER NAME] prohibits the use of alcohol or controlled substances in the workplace.
Employees must arrive for work without having alcohol or controlled substances in their systems. [EMPLOYER NAME} also prohibits employees from possessing alcohol or controlled substances anywhere on the [EMPLOYER NAME’S] property.
IMPLEMENTATION OF THE POLICY
Following a workplace accident that results in injuries, fatalities, or property damage, employees must immediately report what happened to their supervisor and follow the supervisor’s instructions about completing an accident report.
If alcohol or drug use is suspected or can’t immediately be ruled out, the employee will be directed to a testing center for a medical evaluation and a post-accident drug test. The employee must provide a sample of their blood, urine, or breath to test for the presence of controlled substances or alcohol.
The results of the post-accident drug and alcohol test will first be provided to the employee and then to [EMPLOYER NAME]. If the accident causes injuries requiring the employee to undergo emergency treatment, the employee consents to have a urine or blood sample collected and analyzed to check for the presence of controlled substances or alcohol.
REFUSALS
If an employee refuses a post-accident drug test, [EMPLOYER NAME] will treat the refusal as if it was a positive test. The employee will be subjected to discipline up to and including termination for a refusal or a positive test.
EMPLOYEES LEGALLY PRESCRIBED CONTROLLED DRUGS
An employee who has a valid prescription for a controlled drug from their physician and who has taken the medication as prescribed will give the information to the testing collector when they arrive for the post-accident drug test.
An employee who takes prescription medications as prescribed and who has informed management that they need to take their medication will not face discipline under this policy subject to an examination of the facts surrounding the workplace accident.
ACKNOWLEDGMENT
[PRINTED EMPLOYEE NAME} acknowledges I have received, reviewed, and understand the Post-Accident Drug and Alcohol Testing Policy from {EMPLOYER NAME] on [DATE].
I understand that I must report any workplace accident in which I am involved to my supervisor. If the accident involves an injury, fatality, or property damage when alcohol or drug use can’t immediately be ruled out or is suspected, I will submit a urine, breath, or blood sample to be tested for alcohol or controlled substances. I agree that the results of these tests will be provided to both me and to {EMPLOYER NAME].
Signed:[EMPLOYEE SIGNATURE]
Date:[WRITTEN DATE]
iprospectcheck: Your Partner for Reliable Employment Drug Testing
Post-accident drug tests can increase workplace safety while protecting you against liability and higher insurance costs.
At iprospectcheck, we provide an array of drug testing services including pre-employment, random, return-to-duty, reasonable suspicion, and post-accident drug tests.
To learn more about our employment background check and drug testing services or to receive a free quote, call us today: (888) 509-1979
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.
FAQs
How Soon Must a Post-Accident Drug Test Be Administered After an Incident?
If possible, you should administer a post-accident drug test immediately following an accident. However, the standard period might be up to 32 hours following an accident for drugs or eight hours for alcohol.
Keep in mind that alcohol tests are time-sensitive and should be performed no later than two hours or a maximum of eight hours following an accident to detect the presence of alcohol.
What Happens if You Fail a Post-Accident Drug Test?
If an employee fails a post-accident drug test, they will be subject to discipline up to and including termination.
Some examples of discipline might include the removal of the employee from a safety-sensitive role, requiring the employee to complete the employer’s return-to-duty process, including the violation on the employee’s record, or possible termination.
What Methods Are Available for Post-Accident Drug Testing?
Most employers require urine, breath, or blood tests. Saliva tests might also be used. While hair tests detect substance use for up to 90 days before an accident, they are not appropriate for post-accident drug tests.
DOT-regulated employers are required to use DOT-compliant urine or breath tests.
