In a memorandum to Regional Administrators dated October 11, 2018, OSHA clarified the agency’s position as to whether certain types of drug testing would be considered violations of 29 C.F.R. §1904.35(b)(1)(iv). That regulation prohibits employers from discharging or discriminating against an employee for reporting a work-related injury or illness. As we discussed in an earlier blog post, OSHA previously published commentary stating 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.

In the October 11, 2018, memorandum, however, OSHA stated that:

“29 C.F.R. §1904.35()(1) (iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) 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.”

OSHA further stated that “most instances of workplace drug testing are permissible.” 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.

The memorandum concluded by saying that to the extent any other interpretive documents could be construed as inconsistent with the position articulated here, this memorandum supersedes them.

OSHA’s memorandum is welcome news for employers because it is now clear that employers need not analyze whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an accident. Instead, broad post-accident drug and alcohol testing is permitted (subject to applicable laws that may have different requirements) as long as all employees whose conduct could have contributed to the accident are tested.