The Occupational Safety and Health Administration’s (OSHA) new reporting rule goes into effect August 10, 2016. Although it does not expressly address post-accident drug testing, OSHA’s commentary related to the new rule makes clear that such testing will now be squarely in the agency’s crosshairs. Accordingly, many employers may want to consider updating their drug-testing policies to ensure OSHA compliance.

How Does OSHA’s New Reporting Rule Impact Drug Testing?

OSHA’s new reporting rule requires employers to establish a reasonable procedure for reporting work-related injuries and illnesses promptly and accurately. The rule also prohibits employers from deterring or discouraging employees from accurately reporting a workplace injury or illness.

OSHA’s position is that post-accident drug testing could deter injury reporting. OSHA’s guidance on this issue states as follows:

Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting

(emphasis added)

OSHA clarified that its new reporting rule “does not ban drug testing of employees.” However, it made clear that employers cannot use drug tests or the threat of drug tests as a penalty for reporting injuries or illnesses. Rather, “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 lists the following examples of injuries where drug testing is not appropriate: repetitive strain injury or injuries caused by a lack of machine guarding, or a machine or tool malfunction.

OSHA’s guidance further notes that “[e]mployers 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 an employer to require drug testing.”

What Steps Should Employers Take in Light of OSHA’s New Reporting Rule?

Under OSHA’s new reporting rule, employers should ensure that they have reasonable procedures in place for reporting work-related injuries and illnesses promptly and accurately. Employers should make sure that such procedures do not deter or discourage employees from accurately reporting a workplace injury or illness. Specifically, employers should establish a policy prohibiting retaliation for reporting a workplace injury or illness. Employers should also ensure that incentive programs designed to reduce workplace injuries do not have a chilling effect on reporting.

Given OSHA’s new guidance related to drug testing, employers should consider expressly limiting the application of post-accident drug-testing policies. Additionally, since employers may be able to accomplish the same objectives through random and reasonable-suspicion drug testing, employers may consider removing post-accident drug testing from their policies.

Under either of the options above, employers should clarify that post-accident testing will take place only where it is reasonably likely that drug use contributed to the reported injury. In addition, employers should consider noting that, with regard to post-accident testing, they will utilize tests that, as narrowly as possible, identify recent drug use and impairment.