New OSHA Rules Affect Drug Testing and Other Employer Policies

Matthew Robbins

Effective August 10, 2016, OSHA has issued new rules on accident reporting and anti-discrimination standards.

An employer’s accident injury reporting policy must be “reasonable,” particularly with respect to drug testing.  OSHA will view a blanket requirement for drug testing in response to a report of an injury illness as unreasonable.  The only exception is if it is required by state or federal law.  OSHA in its preamble to the rule states:  “To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

OSHA states further:  “Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for the employer to require drug testing.”

It is not reasonable for an employer to have an incentive program that would discourage employees from reporting illnesses or injuries by denying a benefit.  OSHA states: “Therefore, it is a violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work-related injury.”

Thus, for example, if employees lose an incentive as a group if one of them reports a workplace injury, this would likely be an unlawful discriminatory act.  In contrast, if an incentive program makes a reward contingent upon employees correctly following legitimate safety rules, the program would not violate the OSHA rule.