Many employers have policies and procedures regarding drug/alcohol testing of employees. These policies often subject employees to mandatory testing following involvement in a work-place accident. Employers prefer these “blanket” testing policies because they minimize the risk of discrimination claims by removing subjectivity in the decision making, unlike random testing or testing based on reasonable suspicion. However, OSHA’s final rule on electronic reporting of workplace injuries and illnesses, which took effect on Aug. 10, 2016, creates a new risk for employers who conduct blanket post-accident testing.

Prior to implementing its final rule, OSHA required employers to “establish a way for employees to report work-related injuries and illnesses promptly.” (See 29 C.F.R. § 1904.35(b)(1)(i), effective through Aug. 9, 2016). The final rule requires employers to “establish a reasonable procedure for employees to report work-related injuries promptly and accurately.” (See 29 C.F.R. § 1904.35(b)(1)(i), effective Aug. 10, 2016). The final rule states that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” Id.

Although the final rule itself does not address post-accident testing, OSHA’s comments to the rule clearly indicate its belief that blanket post-accident drug testing deters accurate reporting of workplace injuries, and therefore is unreasonable. Given the recency of the final rule, no court has decided whether OSHA’s interpretation is congruent with Congress’s intent. Although we anticipate challenges to OSHA’s interpretation, absent clear evidence that Congress did not intend such an interpretation, courts will defer to OSHA’s construction of its final rule.

Assuming OSHA’s interpretation is valid, the final rule precludes employers from conducting blanket post-accident testing. According to OSHA, “[d]rug 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 the impairment caused by drug use.” OSHA’s interpretation does not require employers to have reasonable suspicion of drug use or impairment to conduct post-accident testing. Rather, three requirements must be satisfied before an employer can subject an employee to post-accident testing:

  1. There must be some reasonable possibility that the employee’s drug use was a contributing factor in the accident leading to the injury or illness;
  2. The method of testing must be capable of identifying impairment, not just the employee’s prior use of drugs; and
  3. The method of testing must not be sufficiently punitive or embarrassing as to deter accurate reporting of workplace injuries or illnesses.

Of primary importance in conducting post-accident drug testing are the characteristics of the accident, unlike reasonable suspicion testing where the characteristics of the employee are most pertinent. OSHA’s comments state it would 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. The comments note that it would generally be unreasonable based on the circumstances of these types of injuries to believe that the employee’s drug impairment contributed to the injuries.

Although not specifically addressed by OSHA in its comments, OSHA’s interpretation may be aimed at jurisdictions where the recreational or medical use of marijuana is legal. A marijuana user might test positive for marijuana weeks or even months after use. OSHA’s interpretation prevents subjecting marijuana users to post-accident drug testing when there is no reasonable basis for believing the marijuana use contributed to the accident.

OSHA’s final rule does not preempt state workers compensation laws, Department of Transportation regulations, or other state or federal laws requiring drug testing. Testing under such circumstances is conducted to comply with other law. For that reason, it cannot be retaliatory and is not intended to deter accurate reporting of workplace injuries and illnesses.

Failure to comply with the final rule’s prohibition on blanket post-accident testing could subject employers to fines in accordance with OSHA’s per violation and willful violation penalty structure. Employers should review their post-accident testing policies and reconsider blanket post-accident testing policies in light of the potential risk presented by OSHA’s new final rule.