Back in 2016, OSHA published a final rule that narrowed the circumstances for post-accident drug testing. The rule was intended to avoid situations where post-accident drug testing operated to discourage employees from reporting workplace injuries or illnesses. In October 2018, OSHA issued a memorandum clarifying OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing. The Memo states that: “Action taken under a safety incentive program or post-incident drug testing policy would only violate [the law] 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.”
The Memo also explains that permissible drug testing includes: “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.”
Based on the 2018 Memo, employers who have a post-accident drug testing policy that is based on the 2016 final rule should review their policy and consider revisions to reflect that post-accident testing will be required of all employees who might have contributed to an incident where the incident harmed or could have harmed employees.
The 2018 OSHA Memo is here: https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11