In a recent memo to its regional administrators, OSHA has stated that it is applying a more lenient interpretation of its regulation prohibiting employers from discharging or discriminating against employees for reporting a work-related injury or illness, with reference to post-accident drug testing and employee safety incentive programs.
In the previous Administration, employers were limited to using drug testing only when there was a “reasonable possibility” that drugs or alcohol contributed to the accident or injury. The earlier OSHA decision had assumed that regardless of employers’ intent, the threat of a drug test would intimidate employees into not reporting accidents and injuries.
The memo states: “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.”
OSHA further declared that as far as it was concerned, “most instances of workplace drug testing are permissible.”
Examples given in the memo 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; and
● Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.
OSHA stressed that 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.