Drug Testing Update

Volume 15, Issue 24
November 2, 2016

Revised KZA Article Available

Drug TestingThe article written by KZA's Gregory J. Kamer and Jody M. Florence about drug testing has been updated to address the recent stance taken by the Occupational Safety and Health Administration against blanket post accident drug testing.

We encourage our clients to review it and share it. You can access the revised article with this link, or by visiting and accessing our Knowledge Center's Publications and Case Decisions page. As always, KZA attorneys welcome your input and questions on this evolving topic.

Update On OSHA's New Stance Against Blanket Post Accident Testing

We have two updates for you on OSHA's changes to the anti-retaliation regulation and its impact on drug testing.

As we discussed in September, OSHA's new position on post accident drug testing is a developing issue. The effective date of OSHA's changes to the anti-retaliation regulation has now been pushed back to December 1, 2016 because of a lawsuit challenging the new provisions.

Also, on October 19, OSHA issued an Interpretation Memo addressing its changes to the regulation on retaliation. In the Memo, OSHA first stresses that the regulation does not apply to all types of drug testing; it applies to only post accident testing. OSHA also states that it "will not issue citations . . . for drug testing conducted under a state workers' compensation law or other state or federal law." Instead, the revised regulation, "29 C.F.R. 1904.35(b)(1)(iv) only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so."

Second, OSHA explains that "[w]hen evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness." To make this evaluation, OSHA will consider factors such as "whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the injury or illness occurred."

OSHA concludes: "The general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances." Finally, OSHA provides a few examples for employers to consider.

If you have questions about the impact of these developments on your workplace policies, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.