When I prepare a drug and alcohol testing policy for Minnesota clients, they often tell me it is their understanding that although post-accident testing is permitted under Minnesota law, it is prohibited by OSHA. Their perception that post-accident testing is unlawful is based on a 2016 change in OSHA’s reporting and retaliation policies, to prohibit employers from retaliating against employees for reporting work-related illnesses and injuries. In October 2018, OSHA issued a new memo which clearly states that post-accident testing is permissible.
Under this 2016 rule, employers were prohibited from taking retaliatory actions considered extreme, such as termination, in response to an employee’s report of a work-related accident. The 2016 rule also prohibits employers from taking seemingly less extreme retaliatory actions that might dissuade employees from reporting work-related illnesses or injuries. The 2016 rule stated that retaliatory actions could include, but are not limited to:
- Workplace safety incentive programs;
- Use of injury reports as a foundation for advancement of discipline decisions; and
- Drug and alcohol testing following a workplace injury or illness where there is no suspected connection between the work-related incident and drug or alcohol use.
This 2016 rule was interpreted by many employers as meaning that an employer cannot mandate a drug and alcohol test after a work-related accident. Many employers considered the 2016 regulation to be an example of overregulation since it could potentially paralyze an employer’s efforts to ascertain whether drugs or alcohol played a role in a work-related accident.
OSHA Clarifies Its Position
On October 11, 2018, OSHA issued a memo containing a Standard Interpretation which clarifies the current OSHA stance on post-accident drug and alcohol testing. The Standard Interpretation states that despite the Agency’s formal prohibition on employer reprisal, OSHA does not intend to prohibit well-intentioned efforts by employers to reduce work-related injuries.
Post-Accident Drug Testing
In the 2018 Standard Interpretation, OSHA made it clear that post-incident drug testing can promote workplace safety and health. The Standard Interpretation clarifies that post-accident testing which is used to evaluate the root cause of a workplace incident that harmed or could have harmed employees would be permissible if the employer tests all employees whose conduct could have contributed to the incident, not just the employees who report the injuries.
Safety Incentive Programs
In the 2018 clarification OSHA also supported safety incentive programs as a vehicle to foster safety. “Incentive programs can be an important tool to promote workplace safety and health,” the memo stated. OSHA stated that reward or incentive programs that give a prize or bonus at the end of an injury-free month, or evaluate managers based on their department’s lack of injuries, can be effective tools to reduce the number of work-related injuries. The memo stated that “. . . if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer . . . as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”
In the Standard Interpretation, OSHA explains that an employer can avoid an inadvertent deterrent effect of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, an inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:
- An incentive program that rewards employees for identifying unsafe conditions in the workplace;
- A training program that covers reporting for all employees which, among other things, emphasizes the employer’s non-retaliation policy; and
- A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
The Standard Interpretation expressly states that it supersedes any previous OSHA interpretative documents that could be construed as inconsistent with the interpretative position stated on October 11. Employers can now feel more confident that they can conduct post-injury or accident testing of employees involved in a work-related accident, provided the testing is not isolated to the employees who report the injuries. Hopefully this clarification will cause reluctant employers to return to post-accident drug and alcohol testing.