On October 11, 2018, The Occupational, Safety and Health Administration (“OSHA”) issued a memorandum for the purpose of clarifying its position on post-accident drug testing with respect to workplace safety programs. The purpose of the memo was to clarify that employers can participate in workplace safety incentive programs and conduct post-incident drug testing as long as the testing is not used for the purpose of retaliating against employees who report injuries.
The memo specifically addressed the 2016 OSHA final rule that an employer’s post-incident drug and alcohol testing could be considered a retaliatory practice. The rule was premised on the logic that automatic post-incident drug and alcohol testing policies deter employees from reporting work-related injuries. This new rule resulted in much Employer consternation and created confusion, especially those that participate in workplace safety programs which require drug and alcohol testing. The 2016 final rule also created concern that safety incentive programs would be considered retaliatory.
OSHA’s latest memo states that its rule does not prohibit participation in safety programs or post-incident drug testing. Instead, OSHA emphasized that action taken under a safety incentive program or post-incident drug testing policy would only be retaliatory “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.”
OSHA acknowledged that rate-based incentive programs that focus on reducing the number of reported injuries and illnesses are an important tool and permissible under OSHA guidelines as long as they are implemented in a manner that does not discourage injury reporting. OSHA further stated that an employer who took an adverse action against an employee under a rate-based incentive program would not violate OSHA rules as long as they had implemented adequate precautions to ensure that employees do not feel discouraged from reporting injuries. Such precautions include implementing an incentive program that rewards employees for reporting unsafe conditions, a training program for all employees to reinforce employees’ rights and responsibilities and to emphasize the employer’s non-retaliation policy, and a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
OSHA also stated the permissible drug testing includes random drug testing, drug testing unrelated to work-injuries, drug testing under a state workers’ compensation law, drug testing under other federal law (such as USDOT required testing), and drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. In the event an employer chooses to drug test to investigate an incident, the employer should test all employees whose conduct could have caused the incident, not just the employees who reported injuries.
Consequently, employers no longer need to establish a reasonable basis for believing that drug use could have contributed to the injury before ordering a post-accident drug test. Instead, employers must be sure to test all employees whose conduct could have caused the incident. In light of the change in OSHA’s guidance, employers should review their drug testing programs and be sure they are updated to reflect the current state of OSHA law.