Post-Accident Testing Does Not Violate OSHA Final Rule

As you may recall, in early 2016 OSHA published a final rule that, among other things, amended 29 C.F.R. § 1904.35 to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. In the preamble to the final rule, OSHA discussed how the final rule could apply to actions taken pursuant to workplace safety incentive programs and post-accident drug testing policies. This led many employers to question whether they could maintain their existing post-accident drug testing policy or eliminate it out of fear of being in violation of the anti-retaliation provisions of the final rule.

On October 11, OSHA issued a memorandum clarifying their interpretation of the final rule as it applies to safety incentive programs and post-accident drug testing. As the memorandum makes clear, it is OSHA’s position that 29 C.F.R. § 1904.35, as amended, does not prohibit workplace safety incentive programs or post-accident drug testing. Most employers, the memorandum notes, implement such programs and policies to promote workplace health and safety, not to punish employees. Therefore, having such programs or policies in place does not, in itself, violate the final rule.

The only way to violate the anti-retaliation provisions is if an employer took action pursuant to a workplace safety incentive program or post-accident drug testing policy to penalize an employee for reporting a work-related injury or illness. After all, the whole purpose of the final rule is to encourage the reporting of work-related injuries or illnesses. Evidence that an employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety rather than penalizing employees.

Most Instances of Workplace Drug Testing Are Permitted

The memorandum outlines specific instances of workplace drug testing that would be permissible under 29 C.F.R. § 1904.35, as amended, including: random drug testing; drug testing unrelated to the reporting of a work-related injury or illness; drug testing pursuant to a state workers’ compensation law; drug testing pursuant to federal law (including Department of Transportation rules); and drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees (so long as all employees that could have contributed to the incident are tested, not just employees who reported injuries).

You can read the OSHA memorandum HERE.

In short, employers can feel comfortable maintaining or reinstating post-accident drug testing policies without fear of violating the OSHA rule.