On October 11, 2018, the U.S. Occupational Safety and Health Administration (OSHA) issued a clarification of its position on post-accident drug testing. The new guidance addresses commentary that OSHA included with a May 2016 anti-retaliation rule. OSHA now asserts that the rule “does not prohibit . . . post-incident drug testing.”

[Note that the Drug-Free Workplace Act does not require any employers to drug test employees.]

29 C.F.R. § 1904.35

That’s the citation for the rule OSHA amended on May 12, 2016, to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses.

Specifically, 29 C.F.R. § 1904.35(b)(1)(iv) states: “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

The rule itself does not mention drug testing. But OSHA’s 2016 commentary accompanying it did.

At that time, the agency wrote: “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.” It then went on to say, “this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”

OSHA’s 2016 commentary included the following supposed standard: “To strike the appropriate balance here, drug testing policies 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 drug use.”

2018 “Clarification”

It’s hard to argue that OSHA’s recent announcement clarifies the above language from the 2016 commentary. Instead, it interprets the text of the rule itself, which never mentioned drug testing in the first place. Obviously, the current administration in D.C. has a different take on this issue than the previous one.

In the October 11, 2018 memorandum, OSHA explains that “Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

To emphasize this change in position, the new OSHA directive adds that “To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” It then specifically identifies four OSHA documents from October and November 2016.

When to Conduct Post-Accident Drug Testing

OSHA’s new guidance memorandum approves of the following forms of drug testing:

• 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.

The last item in this list seems to set a new standard for post-accident drug testing under the anti-retaliation rule. It essentially replaces the 2016 “likely to have contributed to the incident” and “accurately identify impairment caused by drug use” analysis with a more straightforward permissive approach. That is, OSHA now suggests that post-accident testing is presumptively lawful. But if the employer only tests the employee who reported the injury, then this would imply a retaliatory purpose.

In other words, the takeaway for employers is that you generally can drug test employees following a workplace incident. But don’t do it in a way that only targets the reporter, hence discouraging people from reporting safety issues.

Employers May Revisit Post-Accident Drug Testing Protocols

Companies that changed their practices in response to the 2016 rule and OSHA commentary may now reconsider their approach.

To be clear, OSHA’s new interpretation does not require employers to conduct post-accident drug testing. Rather, the clarification relieves employers of much of the concern and uncertainty that the 2016 OSHA commentary created.

Employers who do utilize post-accident drug testing should do so rationally and consistently. Ad hoc or inconsistent testing could lead employees to complain of retaliation under OSHA rules or other legal authority.

New York employers should also read “Drug Testing New York Employers.”