Reporting Workplace Incidents and Drug Testing Policies

Last fall, OSHA softened its position about safety incentive programs and post-accident drug testing — and backed away from a previous position about how those programs and actions could affect the reporting of work-related injuries and illnesses.

The rule in question, 29 C.F.R. § 1904.35(b) (1) (iv), prohibits an employer from retaliating against employees for reporting workplace injuries, illnesses, hazards, etc. The original guidance indicated that some safety incentive programs and post-accident drug and alcohol testing policies could be a retaliatory practice.

The new guidance — issued in a memorandum on October 11, 2018 — emphatically states that most drug testing policies and incentive programs are permissible, which is a change in course, if not always in clarity.

In May 2019, OSHA placed 29 C.F.R. § 1904.35(b) (1) (iv) on the regulatory agenda for September 2020.

This blog explores the new guidance for drug testing policies. What do you need to know about drug-testing policy under the new rule?

Blanket testing was almost out. OSHA’s 2016 Final Rule and subsequent guidance said that they would consider the common practice of automatically testing everyone involved in an accident as a violation of the rule. The thinking was that a blanket approach discourages employees from reporting injuries/accidents in order to avoid drug/alcohol tests.

OSHA said that employers must have an “objectively reasonable basis for testing employees,” and a “reasonable basis for believing that drug use by the reporting employee could have contributed to the injury.”

Most employers took this to mean that their blanket “test everyone” policies were suddenly non-compliant. This was a problem.

Blanket testing is actually okay. In its clarification memo last fall, OSHA said that “most instances of workplace drug testing is permissible under § 1904.35(b) (1) (iv),” This includes blanket post-accident drug/alcohol testing.

Other permissible testing: OSHA specifically noted that the following types of drug testing policies are not in violation of the rule:

  • 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.

— Excerpt from the October 2018 memorandum:

Are you in compliance? I encourage you to  contact me if you have any questions about drug testing policies in your company and workplace.

About the Author: James Laboe

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