OSHA’s Post-Accident Testing Rule Goes into Effect

(Winter 2016) The court case to stop Occupational Safety & Health Administration’s (OSHA) new rule from taking effect is over, resulting in U.S. District Court Judge Sam Lindsay ruling against the plaintiff’s request for a preliminary injunction against the rule. This means that as of December 1, 2016, the anti-retaliation provision of OSHA’s new rule (29 CFR 1904.35) went into effect.

The rule impacts post-accident drug testing. OSHA is concerned that this type of test could be seen as discouraging or retaliatory and thereby deter employees from reporting workplace accidents and injuries. Per newly-released commentary, for an employer to conduct post-accident drug testing their actions must be reasonable, not unduly burdensome and “not deter a reasonable employee from reporting” an accident.

Here is a more detailed summary of how to remain “within bounds” of OSHA’s stance on post-accident testing:

• Non-discretionary, objective, post-accident testing established in corporate policy and pre-announced to employees should be consistently applied following an accident (as defined in the employer’s policy) and be administered to anyone who could have caused or contributed to the accident.
• If drug use could not reasonably have contributed to a particular injury, such as a repetitive motion injury like carpal tunnel syndrome, and the employer has no other reasonable basis for requiring a drug test, the employer is prohibited from drug testing. Employees should not be post-accident drug tested simply because they report injuries unless the drug test is conducted pursuant to a state workers’ compensation law, other state or federal law, or a company’s private insurance policy.
• At the same time, the memo states that “employers need not specifically suspect drug use before post-incident testing, but there should be a reasonable possibility that drug use by the reporting employee could have contributed to the reported injury or illness.”
• OSHA will not issue citations for any drug testing conducted under a state workers’ compensation law, other state or federal law, or a company’s private insurance policy.

For an in-depth review of the rule, visit https://www.osha.gov/recordkeeping/modernization_guidance.html.

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