Most employers are aware that, as of January 1, 2017, a new OSHA rule requires employers to electronically submit injury and illness data. The new rule also incorporated existing prohibitions on retaliation and clarified the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting.
In October 2016, OSHA issued a Memorandum interpreting the new OSHA rule and specifically addressed how the rule relates to post-accident drug testing. Most significantly, OSHA has taken the position that, while the new rule does not prohibit employers from drug testing employees who report work-related injuries or illnesses, employers must have an objectively reasonable basis for testing. The rule does not apply to drug testing for reasons other than injury-reporting.
When determining whether an employer has an “objectively reasonable basis for testing,” OSHA will consider a number of factors, including: (i) whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred); (ii) whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and; (iii) whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.
According to OSHA, the point of the Memorandum is to make clear that drug testing may not be used by an employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.
Employers should review their drug testing policies and consider revising policies that include automatic mandatory post-accident drug testing without consideration of other factors. Note, however, the OSHA rule does not preempt state or federal regulations that require post-accident testing, such as DOT rules.
The Memorandum is here: