On August 10, 2016, the anti-retaliation rules relating to the tracking and reporting of workplace injuries and illnesses come into effect.  While much of the focus in complying with these new rules has been on the Electronic Reporting Requirement, it is important to note that employer policies requiring post-incident drug testing may now be considered retaliatory under these new regulations. 

The provisions contained in 29 CFR 1904.35 will now require that employers develop an accident/injury reporting method that is reasonable and does not deter or discourage employees from reporting. The regulation also prohibits employers from retaliating against employees for reporting work-related injuries. 

The Occupational Safety and Health Administration takes the position that these provisions limit an employer's ability to require drug testing in all post-incident situations. The Administration stated:

  • "OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting."
  • "[T]he final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses."
  • "To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting."

Safe Harbor

If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, such as workers' compensation laws, the employer's motive would not be retaliatory and the regulations would not prohibit such testing. This is doubly true because 29 U.S.C. 653(b)(4)  prohibits OSHA from superseding or affecting workers' compensation laws.

What You Should Do

Unless drug testing is being performed to comply with the requirements of a state or federal law or regulation, employers should modify their policies to limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident. If a drug test is performed, it must be of the type that can "accurately identify impairment caused by drug use." Therefore, the drug test should be of the type that quantifies the amount of the illicit drug in the employee's system and not the type of test that merely detects the presence of a drug (e.g., states the results as positive or negative). 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.