Recording and reporting occupational injuries and illnesses
Post-incident drug testing is not prohibited for determining whether drug use contributed to the cause of an incident. However, OSHA prohibits employers from using drug testing or the threat of drug testing to retaliate against employees when they report a work-related injury or illness. Subparagraph 29 CFR1904.35(b)(1)(iv) says, “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”
Most drug testing is still allowed despite this OSHA provision, e.g., random drug testing, drug testing unrelated to work injury/illness reports, and drug testing required under state or federal law. The agency notes that action taken under an employer's post-incident drug testing policy would only violate the requirement if the employer took action to penalize an employee for a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health. For example, drug testing is permissible to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If post-incident drug testing is conducted, the employer should test ALL employees whose conduct could have contributed to the incident, not just employees who reported injuries or illnesses.
OSHA also says that the agency would look at the reasonableness of the drug test for each specific incident. Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. If there is no way drug use could have played a role in the incident (such as a bee sting, repetitive motion injury, or injury due to lack of a machine guard), drug testing under these conditions could constitute prohibited retaliation.
For more information, see three OSHA memos dated October 11, 2018, November 11, 2016, and October 19, 2016, found at www.osha.gov/recordkeeping/modernization-guidance.
