OSHA Issues Clarification Memo on Incentive Programs and Post-Accident Testing

By Leslie Lasher

Over the past few years, I have often received questions regarding whether an employer can perform a post-accident drug or alcohol test in light of a 2016 Occupational Safety and Health Administration rule. The OSHA guidance on this Rule suggests that a post-accident drug test completed as a matter of course could be “retaliatory,”  leading many companies to discontinue post-accident drug testing. Thankfully, the Occupational Safety and Health Administration recently issued a memorandum clarifying its position on post-accident drug tests, which explains the circumstances in which employers may legitimately complete post-accident drug testing.

In the clarification memo, OSHA provides the opinion that the 2016 rule does not outright prohibit post-incident drug testing. Instead, OSHA emphasized several factors would be considered in determining the legitimacy of the employer’s post-accident drug testing policy, clarifying that it does not take the position that post-accident drug testing as a matter of course is necessarily retaliatory.

Here are the factors employers need to know:

  • Whether the testing actually promotes workplace safety and health;
  • Whether the employer consistently enforces legitimate work rules;
  • Whether an action was taken to penalize an employee for reporting an injury;
  • Whether the post-accident drug test was used to evaluate the root cause of a workplace incident that harmed or could have harmed employees, in which case the employer should test all employees whose conduct could have contributed to the accident, not just the employee who reported the accident.

In our employment law practice, Forrest Firm attorneys routinely advise employers on compliance with all state and federal laws. We stay up-to-date on all new rules and clarifications from state and federal agencies, so that our clients can focus on growing and sustaining their businesses. If you need counsel regarding particular situations or your overall compliance framework, please contact me at the firm today for a consultation.