Does OSHA Allow Post-Incident Drug Testing after a Workplace Injury?

OSHA's injury and illness recordkeeping rule includes an anti-retaliation provision that affects how employers run post-incident drug testing. The provision is 29 CFR 1904.35(b)(1)(iv), and OSHA explained its reach in an enforcement memorandum dated October 11, 2018. Employers that test outside DOT rules can find the basics in legal requirements for drug testing in the workplace.

What the rule requires. Under 29 CFR 1904.35(b)(1), an employer must set up a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurate reporting. The employer must tell each employee about the procedure, about the right to report, and that the employer may not discharge or discriminate against an employee for reporting. The employer itself may not discharge or discriminate against an employee for reporting a work-related injury or illness.

OSHA's 2018 position. The October 11, 2018 memorandum states that section 1904.35(b)(1)(iv) does not prohibit post-incident drug testing or workplace safety incentive programs. Action taken under a post-incident testing policy violates the rule only if the employer took the action to penalize an employee for reporting an injury or illness, rather than for the legitimate purpose of promoting workplace safety and health.

Testing OSHA lists as permissible. The memorandum says most workplace drug testing is permissible, and it gives these examples:

• 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 DOT rule.
• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.

Test the conduct, not the report. When an employer uses drug testing to investigate an incident, the memorandum says the employer should test the employees whose conduct could have contributed to the incident, not just the employees who reported injuries. Consistent enforcement of legitimate work rules, whether or not an injury is reported, also supports the employer's position.

Earlier guidance replaced. The 2018 memorandum supersedes OSHA interpretive documents from 2016 to the extent they are inconsistent, including an October 19, 2016 memorandum, two November 10, 2016 memoranda and related website guidance.

DOT-covered employees. Post-accident tests required by a DOT agency rule fall under the federal law example. The OSHA provision does not itself require any test, while DOT agency rules make certain post-accident tests mandatory, as covered in the FAQ on FMCSA post-accident testing. The FAQ on whether DOT-regulated employers are regulated by OSHA explains how the two systems overlap. For non-DOT employees, state drug testing laws may add their own limits on when and how post-incident tests are given.

Practical steps. Employers should write post-incident testing triggers based on the incident and the people involved, train supervisors to apply them the same way each time, and keep testing decisions separate from injury reporting.