OSHA’s New Interpretation of Post-Accident Drug/Alcohol Testing
On October 11, 2018, OSHA clarified its position regarding post-incident drug testing. Previous to this clarification an employer had to show a reasonable possibility that drug, or alcohol use contributed to the accident in order to require or administer a post-accident drug or alcohol test. Now, testing post-accident would violate OSHA rules only “if the employer took action to penalize the employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
OSHA states that “most instances of workplace drug testing” are permissible and OSHA specifically stated all of the following drug testing as allowable:
- Random drug testing;
- Drug testing unrelated to the reporting of a work-related injury or illness, such as reasonable suspicion without an accident;
- Drug testing under a state workers’ compensation law, such as in the case of a city that is a Certified Drug Free Workplace, which permits testing when there is off-site medical attention given to a person;
- Drug testing under other federal law, such as a U.S. Department of Transportation rule, such as when there is a human fatality or disabling damage to a vehicle and the employee is given a motor vehicle citation;
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees and the employer chooses to use testing to investigate the incident. In this case, the employer should test all employees whose conduct could have contributed to the incident, not only the employees who reported injuries.
Based on this clarification, cities should consider adding policy language to their drug testing policies that allows the employer to reserve the right to test all employees whose conduct may have contributed to the incident.
For more information on this memorandum, drug testing in general, or to request drug testing training for your city contact Andrea Shindlebower Main or Courtney Risk Straw in KLC’s Municipal Law and Training Department.