On May 12, 2016 OSHA issued a final rule regarding workplace injury and illness recordkeeping and reporting requirements (29 CFR 1904.35). Enforcement of the final Rule was delayed until December 2016.
The new Rule added provisions prohibiting employers from discharging or in any manner, discriminating against employees for reporting work-related injuries or illnesses. The Rule change requires employers to inform employees of their right to report and their protection from retaliation.
The Rule does not ban employer disciplinary, incentive, or drug testing programs, but the use of these programs to discourage reporting or retaliate for reporting is prohibited.
Applying the new Rule with regard to drug testing, OSHA states, employers may conduct post-incident drug testing if there is a reasonable possibility that drug use contributed to the incident. OSHA further states than other than alcohol tests, current drug tests are generally unable to establish a relationship between impairment and drug use. OSHA will consider whether a test is capable of measuring impairment at the time of the incident. Consequently, “employers should be aware that post-incident drug testing will not necessarily indicate whether drug use played a direct role in the incident.”
Employers should review their drug testing policy to determine if a required drug test may be considered a deterrent to reporting an injury or a prohibited retaliation for reporting an injury.
OSHA guidance clarifies that the new Rule does not prohibit drug testing of employees pursuant to Department of Transportation Rules or other Federal or State laws.