Is a Post-Accident Drug Screen Legal?

OSHA has been updating its rules on electronic reporting of workplace injuries. While the final rule has been delayed, buried within the interpretation of the new rules, OSHA indicates that you violate the law if you require an employee to take a post-accident drug test.

This statement doesn’t show up in the actual text of the final rule, but OSHA’s interpretation prohibits employers form retaliating against employees who file a work related injury. Their rationale is that blanket post injury drug testing deters proper reporting. The final rules does not prohibit employers from using drug testing, but prohibits the use of drug testing as a form of adverse action against employees who report injuries.

OSHA tries to allow some leeway by indicating that employers should limit post-incident testing to situations in which drug use is likely to have contributed to the incident. In other words, the employer must suspect that the drug use was a contributing factor to the reported injury.

Some federal and state laws do make post-incident drug testing mandatory, and OSHA believes their law will not conflict with this as the motive for testing would be mandated by law rather than a retaliatory act.

When the final ruling is put in place, individual employer policies that require post-incident drug testing will be scrutinized by OSHA. If you have a policy that mandates post-accident drug testing without consideration of the circumstances of the injury, you may be cited and fined by OSHA. Under the new rule, the employer must believe that drug use is likely to have contributed to the accident, and that the test can accurately identify the pre-accident impairment. This may be difficult to achieve.

The enforcement of this rule has been delayed until November 1st to give employers time to review and modify their drug testing policies and procedures.

Greg Kabacy, MBA, CDMS Aspire Consulting LLC