On October 11, 2018, the federal Occupational Safety and Health Administration (“OSHA”) issued a Standard Interpretation Memorandum clarifying its position on post-incident drug testing under 29 C.F.R. § 1904.35(b)(1)(iv).1 The new opinion relaxes OSHA’s previously adopted guidelines for post-injury testing, which, as readers of our 2016 article2 may remember, were stringent enough to effectively prevent employers from having automatic-testing policies unless certain exceptions applied.3
Section 1904.35(b)(1)(iv)4 was published in 2016 and forbids employers from retaliating against any employee, whether by discharge or by any other negative action, for reporting a work-related injury or illness.5 OSHA’s 2016 Standard Interpretation of the rule left employers with uncertain guidelines for conducting post-injury testing, but it did clearly communicate OSHA’s disfavor of automatic drug testing policies. The 2016 Interpretation warned against requiring employees involved in a workplace injury to automatically submit to drug testing, as OSHA believed that automatically conducting post-injury testing tends to discourage the employees from reporting injuries and therefore would be considered a retaliatory action under § 1904.35(b)(1)(iv). Instead, OSHA instructed employers to utilize post-injury drug testing only when there was “reasonable suspicion” that drug use contributed to an injury or when the testing was required under a state or federal law. OSHA’s 2016 Interpretation appeared to warn employers that automatic testing policies would be presumed to constitute unlawful retaliation until the employer could prove that they were not. This message placed a substantial burden on employers to carefully scrutinize their post-injury drug testing procedures or risk becoming subject to an OSHA enforcement action.
OSHA appears to take a more relaxed approach to § 1904.35(b)(1)(iv) in its 2018 Interpretation and provides guidelines for automatic post-injury drug testing that are much easier for employers to follow. While OSHA still maintains that using post-injury drug testing (or the threat of testing) may be considered a form of unlawful retaliation under some circumstances, it now recognizes that this will not always be the case. In a vastly different approach from the 2016 Interpretation, OSHA has now clearly articulated that most instances of workplace drug testing are permissible, including tests used to evaluate the root-cause of workplace injuries. Additionally, the 2018 Interpretation gives a recommendation to help employers avoid claims of retaliation when adopting post-injury testing policies, stating that “[i]f 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 the employees who reported injuries.”
As a final clarification, OSHA unequivocally declared that the 2018 Standard Interpretation supersedes any previously published documents that could be construed as inconsistent with the new Interpretation, including the 2016 Standard Interpretation. This should take the majority of the guess-work out of analyzing employers’ drug testing policies under § 1904.35(b)(1)(iv). Hopefully, the clarifying opinion will serve to lessen employers’ burdens in determining whether their post-injury drug testing policies are permissible under OSHA’s regulations and allow them instead to focus on the importance of ensuring workplace safety for their employees.
1 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) (October 11, 2018).
2 OSHA Delays Enforcement of Record-Keeping Rule’s Anti-Retaliation Provision by Todd Higey, ESS General Counsel (2016). https://www.es2.com/12508-2/#_edn2.
3 A Memorandum from Dorothy Dougherty to the OSHA Regional Administrators entitled “Interpretation of 1904.35(b)(1)(i) and (iv) (October 19, 2016).
4 OSHA exempts eighty-two industry groups from § 1904’s record keeping requirements, ranging from religious organizations and independent artists to internet service providers and educational institutions. 29 CFR § 1904, Appendix A. These exempted industries are not subject to the rule regarding post-accident drug testing.
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