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OSHA Rule Impacts Drug Testing Policies

Certain language in OSHA's new rule, set to take effect August 10, 2016, seems straightforward enough. It says that employers "must not discharge or in any manner discriminate against any employee for reporting a work related illness or injury." Well, of course.

But the commentary that accompany's the rule makes clear that OSHA views a blanket post-accident drug testing policy as a violation of that rule. A drug test is an invasive procedure that many employees find intimidating. Requiring such a test without a specific reason is, in OSHA's view, a form of discrimination.

OSHA's commentary states its view that employers "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 the drug use." OSHA cites as examples when post accident or injury drug screening would not be appropriate when an employee reports a bee sting, or a repetitive strain injury, or an injury caused by lack of machine guarding, or machine or tool malfunction.

In response to concerns that this interpretation of the rule would impact testing required by other regulatory schemes, such as Department of Transportation or state workers' compensation laws, OSHA stated that such concerns were not warranted. If the post-accident testing is required by a state or federal law or regulation, then the testing is not retaliatory in nature and is not prohibited. Thus, for example, if a state drug-free workplace program requires post-accident testing, then the employer may engage in such testing without violating the new OSHA rule.

Employers who are not required by law or regulation to conduct blanket post-accident testing should not conduct such testing. All such employers should revise their policy and practice so that post-accident testing is conducted only when the circumstances reasonably indicate that impairment could have contributed to the reported injury or illness. This is not a "reasonable suspicion" standard because the employer need not specifically suspect drug use or impairment to lawfully test. The requirement is that there "be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness . . . ." Where that is the case, post-accident testing is lawful.


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