OSHA Softens Position On Post-Accident Drug Testing

On October 11, 2018, the U.S. Occupational Safety and Health Administration (OSHA) published a memorandum clarifying its position on workplace safety incentive programs and post-accident drug testing. You may remember that in 2016, during President Obama’s administration, OSHA published a final rule declaring that blanket post-injury drug testing policies deter proper reporting of injuries and would be considered retaliatory. OSHA determined then that “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

The new memorandum clearly softens OSHA’s stance on this issue. OSHA now recognizes that employers have legitimate reasons for conducting post-accident drug tests, and states: “Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” Moreover, OSHA clarifies that “most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv),” including:

• random drug testing;
• drug testing unrelated to the reporting of a work-related injury or illness;
• drug testing under a state workers’ compensation law;
• drug testing under other federal law, such as a U.S. Department of Transportation rule; and
• drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injur ies.

Employers should keep this revision in mind when applying or updating drug testing policies. While OSHA has softened its position on post-accident drug testing, it is still focused on ensuring that employees are not penalized for reporting injuries.As such, employers are wise to consider OSHA’s position that all employees involved in an incident should be tested without regard to who reported injuries.

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