One DOL Drug Testing Rule Officially Gone – Is OSHA Next?

On May 10, the Department of Labor officially nullified a rule passed during the Obama administration that limited states’ ability to require mandatory drug testing for individuals applying for unemployment benefits.

As we covered in an earlier blog, OSHA’s new electronic recordkeeping rule (which is currently the subject of legal challenge) contains anti-retaliation language which OSHA has interpreted as preventing employers, except in limited situations, from implementing mandatory post-accident drug testing.

Although the nullified rule was issued by the Department of Labor Employment and Training Administration, one reading tea leaves might well predict that the principle at play may well extend to OSHA’s retaliation rule soon. (more…)

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Post-Accident Drug Testing: Legal or Illegal?

drug test result form with bottle and penIn 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…)

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