Post-accident drug and alcohol testing is alive and well.
On October 11, 2018, OSHA published a memorandum clarifying that there is no prohibition against post-accident drug and alcohol testing. Previously, OSHA indicated that employers could not use “drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Instead, employers were limited to drug testing when there was a “reasonable possibility” that drugs or alcohol contributed to the accident or injury.
The recent clarification is a win for employers and employees alike, as a drug-free workplace is safer. Post-accident drug testing would only violate OSHA’s anti-retaliation rule 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 states that “most instances of workplace drug testing are permissible.”
Post-accident drug and alcohol testing is an essential part of a drug-free workplace program and often a requirement of a drug testing program. The memorandum states that OSHA considers that most employers who conduct post-incident drug testing and implement workplace safety incentive programs are intended to promote safety and health in the workplace.
The OSHA memo specifically states that 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.
For all things drug testing related or to discuss OSHA’s position on post-incident drug testing , drop us a line here or call us at 847-657-7900. InOut Labs serves employers nationwide with drug-free workplace programs.