Q. Are there any limitations on my company’s ability to require employees to submit to drug and alcohol testing after an accident?
A. In May 2016, OSHA published a final rule that, among other things, amended the Occupational Safety & Health Act (OSH Act) to prohibit employers from retaliating against employees for reporting a work-related illness or injury. In the preamble to that final rule, OSHA cautioned that a blanket rule that mandates drug/alcohol testing after every accident, injury or illness could be seen as retaliatory. Instead, before requiring an employee to submit to post-accident testing, OSHA said that there must be a “reasonable possibility” that drug or alcohol use caused or contributed to the reported injury or illness. Thus, for example, it would not make sense to test an employee who reported a repetitive strain injury from typing, since drug or alcohol use is not likely to be involved.
Fast forward to October 2018. OSHA recently issued a memorandum clarifying the Department’s position on post-accident drug and alcohol testing. First, the Department stated that many employers who conduct post-accident testing “do so to promote workplace safety and health.” While blanket post-accident policies still are not permitted, the Department stated that a post-accident testing policy would only violate the OSH Act “if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
The Department further stated that most instances of workplace drug testing are permissible, including:
- Random drug testing;
- Drug testing unrelated to the reporting of a work-related injury or illness;
- Drug testing under a state’s workers’ compensation law;
- Drug testing under another 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 an employee. However, the Department warned that, if the employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just the employee who reported an injury.
Under this new interpretation, most forms of post-accident testing should now pass muster, so long as the policy specifies that all employees whose acts may have contributed to a workplace accident will be tested.
The Department also addressed safety-incentive programs, stating that incentive programs that reward workers for reporting near-misses or hazards, and encourage involvement in a safety and health management system are “always permissible.” Rate-based safety incentive programs (which focus on reducing the number of reported injuries and illnesses by offering prizes or bonuses based on injury or accident-free periods, or evaluating managers based on their work unit’s number of injuries) are permissible “as long as they are not implemented in a manner that discourages reporting.” If a rate-based incentive program penalizes an employee for occurrences and/or reports of workplace injuries or illnesses, the program must include adequate precautions to ensure that employees feel free to report an injury or illness, such as (a) an incentive program that rewards employees for identifying unsafe conditions; (b) training to reinforce reporting rights and responsibilities and emphasize the employer’s non-retaliation policy; and (c) a mechanism to accurately evaluate employee willingness to report injuries and illnesses.
–Tracey E. Diamond