On October 19, OSHA published a memorandum clarifying the agency’s position on incentive programs, disciplinary procedures and post accident testing policies included in the preamble to the recordkeeping rule. The clarification also provides example scenarios.
While not in the final rule, the language in the preamble indicated that certain types of incentive programs, disciplinary policies and post accident testing would be in violation of Section 1904.35. The section requires employers to establish reasonable procedures for reporting a work related injury or illness and prohibits retaliation against employees who report.
In addition to the initial information stating drug testing in compliance with state and federal law is permissible, OSHA has further clarified that post accident testing conducted under a state workers’ compensation law does not violate the rule.
The agency has held on their initial position “the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” To further clarify, OSHA offered examples:
“Consider the example of a crane accident that injures several employees working nearby but not the operator. The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident. However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate section 1904.35(b)(1)(iv).
Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.”
To view the full memorandum, visit the OSHA website: Interpretation of 19.04.35 (b)(1)(i) and (iv).