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OSHA clarifies permissibility of post-accident drug testing, safety incentive programs

published in McAfee & Taft EmployerLINC | November 12, 2018

For years, employers assumed they were entitled to drug-test employees after they were injured or were involved in a workplace accident … then things became more uncertain.

When the Occupational Safety and Health Administration first announced it viewed post-accident drug testing as potentially unlawful a couple of years ago, employers and business groups filed lawsuits challenging OSHA’s announcement. While that litigation was pending, OSHA walked back somewhat its post-accident drug testing prohibition. This month, OSHA cleared things up for employers, making it again OK for employers to drug-test employees after workplace accidents.

Employers may not retaliate against employees for reporting work-related injuries. In 2016, OSHA took the position that requiring post-accident drug testing could deter the reporting of injuries and may constitute an act of retaliation against employees who report workplace accidents. As a result, companies were understandably uncertain whether to continue post-accident drug testing as part of their protocol.

On Oct. 11, OSHA explained that post-accident drug testing will again be permissible, if the testing policy is applied on a consistent basis and the testing is designed to investigate the accident and “evaluate the root cause of a workplace incident.” That means any employee whose actions may have contributed to an accident – not just the injured employee – should be tested after an accident.

At the same time, OSHA reversed course on safety incentive programs. Previously, OSHA had challenged employers who had rewarded employees for “no reported injuries.” Examples included cash bonuses or employee pizza parties when a department or location had not experienced an accident over a period of time. Such rewards, OSHA reasoned, also acted to deter or punish the reporting of workplace injuries.

That position taken by OSHA changed as well on Oct. 11. Now employers are free to reinstitute safety incentive programs, so long as they communicate to employees the need to report on-the-job injuries. This may be accomplished by rewarding employees for identifying unsafe workplace conditions and training employees on the importance reporting accidents.

OSHA’s Oct. 11 announcements bring clarity to employers and offer tools for companies to improve workplace safety.