According to OSHA, “although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use… requiring the employee to be drug tested may inappropriately deter reporting.”

To address, OSHA recently updated their standards to define employer rights regarding post incident drug and alcohol testing. 

OSHA provides further clarification on their updated stance regarding post accident drug testing on page 193 of the 273 page final ruling.  This ruling amends the requirements set forth in 29CFR 1904.35.  The intent of the new rule is to prohibit “retaliatory adverse action taken against an employee simply because he or she reported a work-related injury or illness.”

The final rule also requires employers to specifically inform employees that they have the right to report injuries and illness, and that “employers are not to discourage or retaliate against an employee who reports an injury or illness.”  Employers can meet this requirement by posting the new OSHA poster.

The new rule makes automatic post accident drug testing illegal, because it has been shown to discourage employees from properly reporting injuries.  As noted in the OSHA ruling, a “blanket” or “automatic” post-accident or post-injury drug testing policy will, in effect, be presumed to be retaliatory and intended to deter or discourage reporting.

The rule does not prohibit all post incident drug testing of employees, however. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. The new regulation, therefore, has no effect on random drug testing.

For example, if there is good reason to believe that “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,” then requiring an employee to be tested would be warranted and permitted, under §1904.35(b)(1)(iv).

Also, if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing. 

The question has been raised regarding drug testing as required by workers' comp, and whether this would violate OSHA’s rule.  OSHA’s response to this question was “If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing.” This is further supported as Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws. 29 U.S.C. 653(b)(4).

It is important to note that the final rule prohibits employers only from “taking adverse action against an employee because the employee reported an injury or illness,” not against employers from enforcing safety and health policies.

The final rule was originally scheduled to go into effect August 10, 2016; however, OSHA extended the go-live date to November 1, 2016 to provide employers more time to bring their practices and policies into conformance with the new rule.

If you currently have a mandatory post-accident drug testing policy in place, it might be time to review and revise to ensure compliance with OSHA’s new rule, as well as any applicable state laws. If you do not currently have a policy in place, MEMIC customers can find further resources within the MEMIC Safety Director, to assist you in developing a policy.