Client Bulletin
July 2016
OSHA Recommends Limited Post-Accident
Drug Testing Policies
Highlights
• New regulations state that employers should limit post-accident drug
testing policies to situations in which employee drug use is likely to have
contributed to the incident.
• OSHA concerned that stringent policies may deter injury reporting.
• Incentive programs for accident-free days also discouraged, with
employers being encouraged to focus on other safety indicators.
As you may be aware, in May of this year, the Occupational Safety and Health
Administration (OSHA) published new regulations on discrimination and injury
and illness reporting. These rules go into force on August 10, 2016 for all
employers. While, on their face, these regulations appear to be merely an
enhanced anti-retaliation provision for reporting injuries, there is more for
employers to understand. OSHA is interpreting this rule broadly to prohibit
mandatory post-accident drug testing, concluding that such tests discriminate
against employees on the basis of injury and illness reporting. OSHA further
views incentive programs as retaliatory if they offer benefits to employees or
workforces who do not report injuries and illnesses.
Employers who have a policy requiring drug and/or alcohol testing following a
work injury should review that policy given these changes. OSHA is
recommending only narrowly tailored post-accident testing policies – testing
where drug use likely contributed to the accident and that accurately tests for
impairment. OSHA has stated that:
. . .the final rule does prohibit employers from using drug testing (or the
threat of drug testing) as a form of adverse action against employees
who report injuries or illnesses. To strike the appropriate balance here,
drug 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 impairment caused by
drug use. 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.
So, we are recommending to our clients that they review their drug testing
polices to determine whether they have a blanket rule of required drug testing
after any accident. Our suggestion is to either revise that policy to require
For More
Information
Laurie Goetz Kemp
Partner
New Albany & Louisville
[email protected]
812-949-2300 ext. 5136
www.k-glaw.com
testing only where it appears drug or alcohol use by the employee caused or contributed to the accident. In
the alternative, companies can remove the policy and use purely a reasonable suspicion standard for all
testing, whether following an accident or otherwise. OSHA does concede that an employer which conducts
drug testing to comply with the requirements of a federal or state law or regulation will not be considered in
violation of the rule, because its motive in conducting testing is not retaliatory. Therefore, employers who
must conduct post-accident testing – pursuant to Department of Transportation (DOT) regulations, for
example – should continue to do so, despite the fact that the DOT’s testing program mandates the use of
urine drug tests, which do not measure impairment.
The other issue raised in these new rules relates to incentive programs or rewards for accident-free days.
Again, OSHA believes that these programs have a chilling effect on the reporting of injuries and that any
such incentives should be based on other safety factors (for example, spot checks for wearing safety
appliances/equipment, using proper lock-out tagout procedures, proper lifting mechanics, etc.) and include
other means that will establish the program does not deter reporting of injuries and does not constitute
retaliation for reporting a specific injury.
If OSHA finds that an employer drug testing policy or incentive program deters the reporting of injuries and
illnesses by employees, it may issue significant penalties for each violation. Currently, OSHA may impose
penalties of up to $7,000 per violationd or, for willful violations, up to $70,000. However, those penalties
are expected to increase in August 2016 to as much as $12,471 and $124,712, respectively.
For more information about these changes, please contact Laurie Goetz Kemp at 812-949-2300 ext. 5136
or at [email protected].
Attorneys in Kightlinger & Gray’s Employment and Worker’s Compensation Practice Groups regularly
advise clients on human resources issues, including employee drug testing and workplace safety. Our
team works with clients across a wide range of industries and includes attorneys licensed to practice in
Indiana, Kentucky, Illinois and Ohio. For more information about our firm, please visit www.k-glaw.com.