Does OSHA allow post-incident drug testing?

OSHA does allow employers to require post-incident drug or alcohol testing. Back in 2016, OSHA published some guidance that attempted to restrict post-incident testing, but the agency withdrew those memos in 2018. The guidance currently in effect plainly states, “most instances of workplace drug testing are permissible.”

OSHA’s regulation at 1904.35, Employee Involvement, requires employers to create a “reasonable procedure” for employees to report work-related injuries and illnesses. That section clarifies that an injury reporting procedure is not “reasonable” if it would “deter or discourage” an employee from reporting.

Outdated guidance

The older 2016 guidance (no longer in effect) appeared to broadly apply the “discourage” provision. The reasoning seemed to be as follows:

1. If an employee used drugs or alcohol, and
2. Knew that reporting an injury would result in a test and possible termination, then
3. The employee would be discouraged from reporting an incident.

That older guidance claimed the regulation prohibited post-incident drug testing “without an objectively reasonable basis” for testing. It defined an objective basis as a reasonable belief that “drug use by the reporting employee could have contributed to the injury or illness.”

This placed employers in a challenging situation. How should the employer determine that drug use “could have contributed” to the incident? Adding another challenge, that guidance claimed that a procedure could be unreasonable even if no employee was actually discouraged from reporting.

Current guidance

OSHA published a new memo dated October 11, 2018, that superseded those 2016 memos. In addition to withdrawing the “objectively reasonable basis” requirement, the new memo specifically stated that the regulation “does not prohibit” post-incident testing. OSHA provided several examples of permissible drug testing, including random testing as well as testing to evaluate the root cause of an incident.

Regarding post-incident testing, the new memo did add that employers “should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” For example, if a forklift operator struck a pedestrian, the employer should test the operator (not just the injured pedestrian).

Finally, this new memo clarified that post-incident testing would violate the regulation only if the employer conducted testing “to penalize an employee for reporting a work-related injury or illness” rather than testing to promote workplace safety. Employers no longer need to show a “reasonably objective basis” for post-incident testing.

Although this replacement memo has been in effect for five years, some online searches may still find older articles that suggest limitations on post-incident testing. Employers should be aware that the October 11, 2018, memorandum represents the most recent guidance, and it specifically superseded the earlier 2016 OSHA memos regarding drug testing.