OSHA Reverses 2016 View That Post-Accident Drug Testing is Retaliatory

  • Nov 7, 2018
  • OSHA
  • Dennis J. Merley

Remember when we reported in OSHA Electronic Records Rule Expands Liability Risk that the Occupational Safety and Health Administration (OSHA) was taking the view that routine post-accident drug testing was retaliatory? Well, OSHA now says “Never mind.”

In 2016, OSHA imposed a new rule designed to encourage employees to report work place illnesses and injuries without fear of employer retaliation. The rule required employers to:

– inform employees that they have the right to accurately report work-related injuries and illnesses without employer retaliation or discrimination;

– make employee reporting procedures “reasonable” for work-related injuries and illnesses by not deterring or discouraging reports; an

– refrain from retaliating against employees for making reports of work-related injuries and illnesses.

Then:  Post-Accident Drug Testing is Retaliatory

At the time, OSHA cautioned all of us that in furtherance of these requirements, they viewed post-incident blanket drug testing (testing regardless of suspicion of impairment) of employees to be retaliatory because it would have a chilling effect on accident-reporting. It appeared that the only post-accident testing that might pass muster in OSHA’s eyes was when there was a reasonable possibility (i.e., a high likelihood) that drug use contributed to the reporting employee’s incident, and the drug test would accurately identify the impairment caused by the drug.

This new standard was problematic because (a) drug testing is good at identifying the presence of drugs in a person’s system but there is no uniform standard for detecting actual impairment; and (b) this conflicted with the more expansive post accident testing rights that employer’s enjoy under Minnesota’s drug testing statute.

Now:  Post-Accident Drug Testing is Just Fine

No worries – OSHA just issued a memorandum on October 11, 2018, that basically reverses all of that. The memorandum says that for the most part, drug testing is not retaliatory, and it sets forth the specific types of testing that are now permissible under the rule.  They are:

– 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.

– “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 injuries.”

Bottom Line

If you decided to hold off on revising your drug testing  policy to see how this shook out, your skepticism paid off.  If you did change your policies to conform to OSHA’s rigid view of testing, at least you can now return to what had worked for you for many years.