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OSHA "Clarifies" its Position on Post-Accident Drug Testing

I previously talked about OSHA’s comment on anti-retaliation and that employers that require drug tests for employees involved in accidents could violate the requirement to establish a “reasonable” procedure for employee injury reports. In those comments, OSHA suggested drug testing procedures might not be “reasonable” where such a procedure could deter employees from reporting accidents. I was not alone in criticizing OSHA and argued that no reasonable employer could disregard the possibility that drug use may have been a factor in a workplace accident, especially when we are facing an opioid-addition epidemic of historic proportions.

Perhaps OSHA was listening. On October 19, 2016, OSHA issued a memorandum explaining its position in more detail. In that memo, the agency made clear it was not prohibiting employers from drug testing employees who report work-related injuries as long as the employer has an objectively reasonable basis for testing. And to its credit, OSHA did provide a helpful example of a crane accident that injured several employees working nearby but not the operator. OSHA agreed that an employer could reasonably test the injured employees—even though they didn’t operate the crane—if there were a reasonable possibility that the accident could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. The key to the validity of drug testing would be whether the testing could provide any insight on the root causes of the incident.

I would go a step further. I would argue that there could be a basis for testing an employee who was an “innocent bystander” who simply happened to be walking near the crane and was injured in the accident, if the employee had disregarded that he was in a zone of danger because there could be a possibility that he was under the influence of drugs. I think no one disputes that it would be unreasonable for an employer to only test injured employees and not other employees whose conduct could have contributed to the incident.

Of course, OSHA’s more reasonable position may also be in a response to a federal judge’s threat to enjoin the new regulation nationwide. In response to the pending litigation, OSHA has also agreed to delay enforcement of the anti-retaliation provisions of the new regulation until December 1, 2016.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.