OSHA Post Accident Drug Testing After Work Injury
Recent OSHA rule discourages blanket post-injury drug testing policies as an impermissible deterrence to proper reporting of workplace injury and potential retaliation.
OSHA 29 CFR 1904 - Final Rule to Improve Tracking of Workplace Injuries calls for employers to electronically submit injury and illness data to OSHA. The new rules also included anti-retaliation protections which prohibit employers from retaliating against employees for reporting workplace injury or illness. The goal of the new rule, which became effective December 1, 2016, is to promote “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.”
OSHA states that “blanket post-injury drug testing policies deter proper reporting.” Therefore, post-accident drug testing must be limited to tests based on an “objectively reasonable basis” that drug use by the reporting employee was a contributing factor to the reported injury or illness. In other words, there must be a reasonable possibility that drug use was a causal factor in the incident. Drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be “objectively reasonable” because the drug use could not have contributed to the injury.
Exceptions to the new rules on blanket post-injury drug testing include certain employees regulated by the Department of Transportation, and where blanket post-accident drug testing is allowed by state workers’ compensation law or other state or federal law.
On June 28, 2017, under President Trump’s new Secretary of Labor, R. Alexander Acosta, the Department of Labor published a Notice of Proposed Rulemaking (NPRM) which reflected that “OSHA intends to issue a separate proposal to reconsider, revise, or remove other provisions of the prior final rule.” However, to this date the administration has not taken any action. Therefore, under current interpretations of the Final Rule (with the aforementioned exceptions), blanket post-accident drug testing policies should be considered potentially retaliatory and therefore violate the rule.
