The Occupational Safety and Health Administration (“OSHA”) was created to ensure safe and healthy working conditions for working women and men by establishing and enforcing standards and by providing training, outreach, education, and assistance. In 2016, OSHA enhanced its enforcement efforts against employers who OSHA believed were using drug testing programs and safety incentives to improperly reduce recordable work-related employee injuries and illnesses. OSHA made an amendment to 29 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses.
Before this amendment, many employers had policies in place that required “blanket” post-accident drug testing. Consequentially, this acted as a major deterrent to employees reporting workplace injuries or incidents irrespective of any potential role of drug intoxication in the incident. Therefore, OSHA made mandatory blanket post-accident drug testing a violation of the law. This is not to say that employers may not drug test an employee after an incident; however, if and when an employer does conduct post-accident drug testing, the employer must have very good reason to believe that employee drug use likely contributed to the incident for which the drug test can accurately identify impairment caused by drug use.
After announcing the implementation of the new rule and receiving a multitude of criticism and questioning,  OSHA provided clarification of their position and interpretation on workplace safety incentive programs and post-incident drug testing in a memorandum issued in October of 2018. OSHA went on to say that “most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv).” In the memorandum, OSHA provides examples of permissible drug testing which do not violate the law: 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; and 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.
What protections are afforded to employers in the making and subsequent clarification of OSHA’s new rule?
Employers still have the right to drug test their employees on the basis of reasonable suspicion as allowable under federal or state law. Essentially, if an employer has a reasonable suspicion drug and alcohol testing policy and if any accident falls within the policy’s parameters, a post-accident alcohol or drug screen can be performed without violating OSHA’s new rule. Further, automatic post-accident testing of an injured employee is effectively forbidden, and employers will need to discontinue or suspend any policy that calls for such automatic testing.
Will OSHA’s new rule survive legal challenges or be withdrawn?
The legal and political battle between employers and OSHA pertaining to this new rule has yet to rear its head, but regardless of the future legal actions that could be taken, OSHA’s new rule is in effect and employers must comply. If challenged, as long as OSHA can show that the regulation aligns with Congressional intent it would likely be afforded a presumption of validity called “Chevron deference.”
With OSHA’s new rule in place, employers nationwide will have to look at their current post-accident protocol and make necessary revisions or risk violation of the law. Failure to do so would result in the inevitable legal consequences. This could include fines or citations. Consequences could also include complaints, reports, and lawsuits from employees alleging retaliation. OSHA makes clear that the intent behind the final rule is not to ban all post-accident drug testing of employees. Rather, the final rule requires that employers create the appropriate balance with post-accident drug testing and employee rights.
 U.S. Dep’t of Labor, Occupational Safety & Health Admin., 3021-06R 2017, Worker’s Rights (2017). See 29 C.F.R. § 1904.35(b)(1)(iv) (2016).  “Blanket” post-accident testing refers to the act of testing all employees present at an accident regardless of the presence or absence of any apparent contribution to the cause of the accident.  See, e.g., Marilyn Clark et al., Are Your Drug Test Policies Placing You At Risk With OSHA, Law360 Expert Analysis, Jul. 18, 2016.  U.S. Dep’t of Labor, Occupational Safety & Health Admin., Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv) (2018).  Id.  Id.  Id.  See e.g., Fla. Stat. Ann. § 440.102 (2020).  See, e.g., United States v. Mead Corp., 533 U.S. 218, 221 (2001).