Post-Accident drug and alcohol testing is alive and well and it is not illegal. Post-accident drug and alcohol testing is an important part of a drug free workplace program and often a requirement of a drug testing program such as for DOT required drug and alcohol testing programs.
A couple of years back OSHA threatened that post-accident drug testing was going to be illegal. Many companies stopped doing post-accident drug testing because of the OSHA threats. Several lawsuits were filed and OSHA backed down. OSHA did maintain that employers were limited to drug testing when there was a “reasonable possibility” that drugs or alcohol contributed to the accident or injury.
Now OSHA has made it abundantly clear that there is no prohibition against post-accident drug and alcohol testing. On October 11, 2018 OSHA issued a memorandum clarifying the agency’s position as to whether certain types of drug testing would be considered violations. The memorandum states that OSHA believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.
Employers can be comforted that OSHA now maintains that “most instances of workplace drug testing are permissible.” OSHA in its memo provided examples of permissible drug testing:
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
- Random drug testing.
- Drug testing unrelated to the reporting of a work-related injury or illness.
- Drug testing under a state workers’ compensation law.
- Drug testing under other federal law, such as a U.S. Department of Transportation rule.
It is now clear that employers need not analyze whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an accident. Instead, broad post-accident drug and alcohol testing is permitted as long as all employees whose conduct could have contributed to the accident are tested.
Post-accident drug testing is an important tool to help deter drug use in the workplace. It is also a mechanism to help employers save money with the possibility of a workers comp claim denial when the injured employee is positive on the post-accident testing. This is called the intoxication defense and is available in most States. Always conduct post-accident drug and alcohol testing immediately following an accident just after medical treatment.