Employer Drug Testing Policies May Be Unlawful Under OSHA's Interpretation of Its Final Rule Regarding Injury Recording and Reporting

In May, the Occupational Safety and Health Administration ("OSHA") issued a final rule revising regulations for the reporting and tracking of workplace injuries. The crux of the final rule incorporates new electronic reporting requirements and prohibitions against employers discouraging workers from reporting an injury or illness. We previously reported on these major features of the rule in a prior Legal Alert.

Although the regulatory text of the final rule contains no reference to drug testing, OSHA's commentary to the final rule suggests that, under OSHA's interpretation of the rule, certain post-accident drug testing policies will be deemed unlawful. OSHA's comments to the final rule state:

OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.

The agency explains that drug testing is often perceived by employees as an invasion of privacy, "so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting." In view of this, OSHA concludes:

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. For example, 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. Such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

The rationale behind OSHA's interpretation of the final rule is questionable, inasmuch as a post-accident drug testing policy should, theoretically, only deter reporting by employees who are under the influence of drugs when an accident occurs.

Be that as it may, employers should review their drug testing policies to ensure that they do not contain overly broad "blanket" post-accident testing, which OSHA will view as unlawful under the final rule.

Note that drug testing which is mandated by another law will not run afoul of the final rule. OSHA explains, "[i]f 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."