Workplace Drug Testing Considerations in Light of OSHA’S Anti-Retaliation Provisions

A common employer practice is to maintain a policy that includes automatic drug testing after a workplace accident.  The rationale, of course, is to deter employees from reporting to work under the influence of illegal drugs.  But,in drafting and enforcing drug testing policies, employers need to consider OSHA’s 2016 Final Rule, which added additional provisions regarding retaliation for workplace reporting.  Slip and Fall - Northbrook, Illinois Employment Attorneys

According to OSHA, blanket post-accident drug tests would likely discourage employees from reporting workplace injuries and therefore violate its retaliation rules.  This does not mean an employer cannot drug test after a workplace accident.  OSHA’s position is that there must be a reasonable possibility that drug use was a causal factor in the incident.

While OSHA does not define what it considers a “reasonable” basis to conduct testing, it gives a number of examples of when it would not be reasonable to drug-test an employee, such as when an employee reports a bee sting, a repetitive strain injury, or an injury caused by a machine malfunction.  Employers do not have to specifically suspect drug use by an individual employee to drug test, but there must be a reasonable basis to investigate whether drug or alcohol use may have caused or contributed to an injury or illness.  According to OSHA, it would be reasonable for an employer to require post-incident drug testing for a worker who reported an injury experienced while using a tool or machinery if the employee’s conduct contributed to the injury.  For example, driving a forklift into a piece of stationary equipment.

The OSHA Rule has no impact on post-accident testing mandated by federal regulations or permitted by state workers’ compensation laws, including those that offer a reduction in insurance premiums for implementing a drug free workplace.  It also does not affect pre-employment, random, or general reasonable suspicion drug testing.

Employers should review their drug testing policies to ensure they are in compliance with OSHA as well as applicable state and federal laws.  Managers and supervisors should be trained to evaluate a post-accident reasonable suspicion basis in the event of a workplace accident or incident.


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