Previously, OSHA stated that employers could not use "drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses." Rather, employers were limited to drug testing when there was a "reasonable possibility" that drugs or alcohol contributed to the accident or injury.

However, in the Standard Interpretation released on Oct. 11, OHSA clarified that "most instances of workplace drug testing are permissible," including:

• "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."

The memorandum concluded by saying that to the extent any other interpretive documents could be construed as inconsistent with the position articulated here, this memorandum supersedes them.

Accordingly, based on OSHA's clarification and revised guidance, employers are likely permitted to implement post-accident drug testing programs, so long as they are not discriminatory in any way and are enforced consistently for all employees.

Source: The Occupation Safety and Health Administration, 10/11/2018