More on OSHA’s Recordkeeping and Reporting Rule and Post Accident Drug-Testing

In its comments concerning the final recordkeeping and reporting rule OSHA noted that some businesses expressed concern that OSHA planned a wholesale ban on drug testing. The agency reassured employers that the final rule does not ban drug testing. “However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses,” OSHA said. “To strike the appropriate balance here, 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.”  So, for example, it would not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury resulting from a lack of machine guarding or a tool malfunction, OSHA said. Before a drug test is conducted, “there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness,” OSHA said. “Reasonable suspicion” means that an employer has reason to believe that an employee has violated the employer’s drug and alcohol policy and is based on current, specific observations of the employee’s appearance, behavior, speech and breath and/or body odors.”   

Some policy observers have speculated that OSHA’s comments might be challenged in court as nothing in the rule speaks to drug testing and that the comments themselves did not go through formal rulemaking. Most safety commentators do believe that employers still can conduct other drug testing as long as it does not deter injury reporting.   However employers should be mindful of state law limitations and that employers carefully evaluate their drug-testing policies, balance competing interests, and think through ramifications and requirements.