How the Change in Reasonable Suspicion Policies Could Impact Employers

Reasonable suspicion for drug testing on the job changed recently under the new administration. To cover what’s new and provide tips for employers, Safety Justice League welcomed Adele Abrams, an attorney focusing on OSHA (Occupational Safety and Health Administration), MSHA (Mine Safety and Health Administration), and employee safety.

“Reasonable suspicion is a hot topic again under a new administration focused more on workers. It’s a hybrid issue—a little bit HR, safety, and DOT,” Abrams explained.

In 2016, the rules of testing post-injury had to include reasonable suspicion that the cause of it was drug-related. Failure to show this, and the employer could face fines. If found to be wrongfully tested, workers could be reinstated and receive back pay and benefits.

That practice ended during the Trump administration, allowing drug testing after an incident as long as it was part of a root cause investigation. Under Biden, the policy shifts back to the 2016 stance.

“OSHA is now looking at from the worker’s perspective. Prior, there was elimination of worker protections. Employers need to change their policy, or they can risk complaints,” Abrams said.

Abrams noted that whistleblowing could also apply to those making safety complaints. “If an employee makes a safety complaint, and they require a test, which is negative, the worker is protected. Even supervisors can face fines.”

Abrams’ advice to employers is to “be as objective as you can to avoid litigation.” Unfortunately, reasonable suspicion itself lends itself to being more subjective. “You can use a checklist to note what you’re observing about demeanor, appearance, and behavior. But you’ll need to apply it a meaningful way, which means knowing your workers and their normal behavior.”