In issuing its final rule on May 11, 2016 concerning its Recording and Reporting Occupational Injuries and Illnesses regulation, OSHA commented on the scope of permissible post-accident drug testing in the workplace.

While the rule itself is silent on drug testing, OSHA interpreted the anti-retaliation provisions of the rule as prohibiting regulated employers from implementing blanket post-injury drug testing.

In the rule-making record, OSHA stated that the final rule prohibits employers from using drug testing (or the threat thereof) to retaliate against employees for reporting injuries and illnesses.

“Blanket post-injury drug testing policies” will not pass muster under the new rule, as OSHA has concluded that such policies can deter employees from reporting workplace illnesses or injuries.

Drug Testing Restrictions

OSHA further clarified that employers should tailor any drug testing policies to restrict post-injury testing to situations where there is a “reasonable possibility” that drug use contributed to the incident, although an employer need not have a specific suspicion that drug use was at play.

According to OSHA, drug testing is permissible where it appears likely that employee drug use was involved in the incident and where the applicable drug test is likely to identify whether the employee was in fact impaired by drug use (as distinct from situations where drug testing would merely reveal the use of drugs, but not any impairment related thereto).

OSHA further indicated that any drug testing that could be perceived as punitive or embarrassing would also likely violate the rule.

In an effort to clarify the contours of appropriate drug testing, OSHA provided examples of situations in which post-incident drug testing likely would not be appropriate.

OSHA specifically noted that drug testing in response to reports of a bee sting or repetitive strain injury would not accord with the final rule. Similarly, drug testing in response to a report of an injury related to a tool or machine malfunction would not likely be appropriate.

Any drug testing mandated by state workers’ compensation law remains permissible.
OSHA further clarified that any drug testing an employer conducts in order to comply with state or federal law or regulations would not be considered retaliatory and, therefore, is not prohibited under the rule.

Thus, any drug testing mandated by state workers’ compensation law or, for example, federal DOT Commercial Driver License regulations, remains permissible.

More guidance is coming. While the anti-retaliation provisions of the final rule become effective August 10, 2016, OSHA will delay their enforcement until November 1, 2016, so that it can conduct outreach to employers affected by the final rule. Indeed, OSHA is currently developing educational materials and guidance to help employers comply with the new provisions.

What Employers Should Do

In the meantime, employers should review their drug testing policies to ensure that they are properly tailored to the parameters of the final rule.

For example, employers may want to adopt policies explicitly stating that drug testing will only be required (1) where it appears likely that employee drug use was involved in the incident and (2) where the applicable drug test is likely to identify whether the employee was in fact impaired by drug use.

Employers should also amend their policies to note that drug testing will be applied in a neutral fashion and not for the purposes of retaliating against employees who report workplace illnesses or injuries.

Employers will also want to ensure that their supervisory employees are aware of the rule’s contours and act in accordance with them.


Authors: Marc Zaken, Managing Shareholder of the Stamford office of labor and employment law firm Ogletree Deakins, and Kelly M. Cardin, an associate at the firm.