In a prior blog, we discussed OSHA’s recently enacted anti-retaliation rule which says, among other things, that employers cannot deter injury and illness reporting or retaliate against employees for such reporting. The rule itself does not expressly address drug-testing but the preamble makes clear that OSHA believes mandatory post-accident drug testing would be retaliatory. However, OSHA further stated that mandatory post-accident drug testing to comply with the requirements of a state or federal law or regulation is permissible. Mandatory post-accident testing to receive workers’ compensation discounts is also lawful. In other words, such testing would not be retaliatory because there is a lawful and valid reason that permits or requires such testing.
In the absence of a permissible reason to perform a mandatory post-accident drug test the issue essentially becomes whether the employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness after an accident. In guidance issued on October 19, 2016, OSHA opined the “central inquiry” will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If not, the employee should not be drug tested. (more…)