OSHA’s Final Rule to Improve Tracking of Workplace Injuries and Illnesses May Also Impact Post-Injury Drug Testing

The Occupational Safety and Health Administration’s (OSHA) new rule to improve tracking of workplace injuries and illnesses may also impact how employers conduct post-injury drug testing.

On May 12, 2016 OSHA published a new rule requiring certain employers to submit injury and illness data to OSHA electronically. The final rule also requires employers to: (1) inform employees of their right to report work-related injuries and illnesses free from retaliation; (2) ensure that their procedure for reporting work-related injuries and illnesses is “reasonable and does not deter or discourage employees from reporting”; and (3) refrain from retaliating against employees for reporting work-related injuries or illnesses.

While the new rule does not itself address post-injury drug testing, OSHA’s comment to the rule suggests that uniform post-injury drug testing policies could be seen by OSHA as a form of retaliation.

The comment does not have the force of law and does not invalidate post-accident drug testing of employees. However, OSHA does suggest that employers should not use drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.

OSHA suggests that post-accident testing policies should be limited to situations where there is already a reasonable possibility that drug use was a contributing factor to the reported injury. OSHA notes, however, that uniform post-accident drug testing policies are not retaliatory when intended to comply with the requirements of a state or federal law or regulation, such as Ohio’s Drug Free Workplace Program.

The final rule becomes effective on August 10, 2016. If you have any questions about how to comply with the new OSHA Final Rule to Improve Tracking of Workplace Injuries and Illnesses or how the rule might otherwise affect your employee testing protocols, please contact Karl R. Ulrich at kulrich@ssdlaw.com or 937.222.2052

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