by Alissa C. Atkins, Esq.

The same OSHA rule also dissuades employers from requiring post-accident drug tests. Because OSHA bans retaliatory actions against employees who report work-related injuries, the final rule suggests that drug tests not be performed post-accident as a matter of course. OSHA contends that workers are afraid to report work-related injuries because they do not want to be drug tested.

The rule does not specifically forbid drug testing, but the use of the drug test to threaten or penalize those who report injuries. OSHA recommends 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.” The rule goes on to assert that “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.” Allegedly, these injuries would have occurred irrespective of the worker’s potential drug use. Instead, OSHA recommends that before an employer requires drug testing “there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness.”

Of course, it can be difficult for employers to be forced to pick and choose which cases to drug test and may require an investigation and quick decision to be made immediately after an accident, when the employer should be more focused on ensuring that the injured worker receives appropriate medical care. Fortunately, OSHA admits that the suggestion in the rule would not prevent most post-accident drug testing. Not only does Section 4(b)(4) of the Act prohibit OSHA from superseding or affecting workers’ compensation laws, but if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. Therefore, despite the discouraging wording of the rule, post-accident drug testing remains a viable option.

The full text of the final rule is available here.