In October 2018, OSHA released a memo that clarified some of the requirements and guidance surrounding its post-accident drug testing policies. In May 2016, OSHA published a Final Rule amending section 1904.35(b)(1)(i) and adding an “anti-retaliation” provision designed to prevent employers from taking adverse action against employees who reported injuries.
The 2016 Rule (also known as The Final Rule) focused on electronic reporting, but OSHA had also warned that employers could not use post-accident or incident drug/alcohol testing, or the threat of such testing, as a form or retaliation against employees who report injuries or illness from accidents. In further commentary and guidance on the 2016 Rule, OSHA stated that post-accident testing would survive agency scrutiny only if there was a “reasonable basis” for believing that drug use could have contributed to a work-related accident
OSHA’s 2016 guidance created considerable confusion among employers regarding the permissible scope of safety-incentive programs and post-incident drug/alcohol testing under the 2016 Rule.
In its October 11, 2018 Standard Interpretation Memorandum, OSHA clarified that the 2016 Rule does not prohibit safety-incentive programs. In an important shift, OSHA clarified that most drug testing policies are permissible, including post-accident drug testing. OSHA specifically noted that the following types of drug testing policies were not in violation of OSHA’s requirements.
OSHA’s memorandum is welcome news for employers because it is now clear that employers need not analyze whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an accident. Instead, broad post-accident drug and alcohol testing is permitted (subject to applicable laws that may have different requirements) as long as all employees whose conduct could have contributed to the accident are tested.
The OSHA guidelines mean that employers no longer need a link between the possible or suspected drug use and the reported injury or illness. Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs. Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.
Post-accident testing programs in particular—which OSHA acknowledges promote safety—need only specify that all employees whose acts may have contributed to a workplace accident will be subject to testing. An employer that conducts such tests should include any employees who may have caused or contributed to an accident, and not only those who report injuries. Broader testing without a “contributed to” standard continues to be allowed when no workplace injury occurs, such as situations in which an accident leads to property damage, but is subject to state law and any regulated testing requirements.
The most important factor when it comes to compliance is that employers will want to make sure they state somewhere in their post-incident testing policy that their company “reserves the right to test all employees whose conduct may have contributed” to the incident. As a general rule, post-incident drug testing will be viewed favorably by OSHA if it either is specifically permitted by some federal or state legal requirement or provision, or if it is limited to testing individuals whose conduct could have contributed to the incident.
Keeping up with all of OSHA’s standards can be difficult. While OSHA’s relaxed stance on incentive programs and post-accident drug testing may lead to less scrutinizing of employers, companies should not completely ignore the original interpretation, as it provides good tips and may help foster a culture of safety in your workplace. Though OSHA permits post-accident drug testing, it is a good practice to only test when there is reason to believe the accident involved drugs or alcohol.
Having a vendor partner for drug screening can help your company ensure compliance with OSHA standards and guidelines. Your vendor partner serves as your safety-check for legal issues related to post-accident drug testing and what should and should not be included in your employee guidelines. Learn how Cisive can help your company stay compliant with OSHA regulations and maintain a safer workplace.
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