In an October 2016 memo OSHA set forth the position that drug testing employees who report injuries or illnesses was prohibited unless an employer had an “objectively reasonable basis” for conducting the test. According to OSHA, “evidence in the rule making record shows that blanket post-incident drug testing policies deter proper reporting,” and OSHA indicated that employers might run afoul of anti-retaliation provisions with such actions.
However, in a new memorandum issued on October 11, 2018, OSHA walked back that policy slightly. According to the new memorandum, most instances of workplace drug testing will be considered permissible under 29 C.F.R. § 1904.35(b)(1)(iv). Examples of permissible drug testing include:
- Random drug testing.
- Drug testing unrelated to the reporting of a work-related injury or illness.
- Drug testing under a state workers’ compensation law.
- Drug testing under other federal law, such as a U.S. Department of Transportation rule.
- 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.
The new OSHA memorandum goes on to indicate that “(a)ction taken under a … post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) 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 also indicated in the memorandum that similar standards would apply to the evaluation of workplace safety incentive programs, which the 2016 memo also suggested could be considered retaliatory if the program created a disincentive for employees to report workplace accidents.