A Capehart Scatchard Blog

OSHA’s New Regulations and Its Restrictions on Post Accident Drug Testing

By on August 16, 2016 in OSHA with 0 Comments

Does your organization require employees to undergo drug and alcohol testing automatically in every instance where there has been a workplace accident?  If so, new regulations from the Occupational Safety and Health Administration (“OSHA”) will greatly impact upon the continuation of such practices in your workplace.

In May, 2016, OSHA published regulations that ostensibly are designed to implement new rules barring discrimination and enhancing injury/illness reporting. On their face, these new rules appear to merely implement stricter rules against employee retaliation/discrimination for reporting workplace injuries. However, OSHA is broadly interpreting such regulations to prohibit all mandatory automatic post–accident testing, concluding that such policies discriminate against employees on the basis of injury and accident reporting. Because of this belief, OSHA is recommending that only narrowly tailored drug testing policies be used-ones expressly linked to situations where employee drug use is likely to have contributed to the happening of the incident and where the desired testing can accurately test for that impairment. Why has OSHA adopted this view?  OSHA believes that stringent testing polices deter injury reporting and therefore discriminate/retaliate against persons who have suffered workplace incidents.

So, what kind of drug testing would be inappropriate under these new regulations?  OSHA states:

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.

However, employers which conduct automatic post-accident drug testing to comply with other federal and state legal requirements (such as Department of Transportation regulations) can continue with such testing because the motive for same in the eyes of OSHA is not retaliatory.

In light of these new regulations, which went into effect on August 10, 2016, employers must immediately review their current drug testing policies to ensure compliance with these new rules and regulations. Nevertheless, it is important to understand that these new regulations do not themselves bar post-incident drug testing-they merely require that the testing be based upon some form of reasonable suspicion that drug use contributed to the incident.

Moreover, you should also be aware that lawsuits are now pending challenging OSHA’s broad conclusions about the adverse effects of all mandatory post-accident testing on the reporting of workplace injuries and accidents. Nevertheless, in the meantime, employers must still satisfy these new legal restrictions, and with the assistance of knowledgable legal counsel, employers can effectively craft and administer compliant post-accident drug and alcohol testing polices despite these new regulations.

Ralph R. Smith, III

About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.


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