Blanket Post-Incident Drug Testing Policies

OSHA takes the position that blanket post-incident drug testing policies deter employees from reporting workplace injuries. While the new rule does not ban drug testing of employees, it prohibits employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.

OSHA states that 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.

While OSHA does not require employers to specifically suspect drug use before testing, the agency states that there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

OSHA further stated that if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation (such as a workers’ compensation law), the employer’s motive would not be retaliatory, and the final rule would not prohibit such testing.