OSHA’s post-accident policy change and what it means for businesses

OSHA has recently clarified their post-accident policy. According to The National Law Review, “The new guidance clarifies that safety incentive programs are retaliatory and unlawful only if they seek ‘to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.’ It also states that ‘most instances of workplace drug testing are permissible.’” So, what does this mean for businesses, especially those in which post-accident drug testing is a regular occurrence?

It means that employers can rest easy, knowing that drug testing is permissible in all situations where it is appropriate, especially pertaining to post-accident and randoms. This became a gray area for many businesses during the Obama administration, in which OSHA passed laws that could give credence to discrimination claims for drug testing. However, in the age of marijuana legalization and stunning rates of opioid addiction, drug tests are more important than ever. OSHA has recognized that and released this policy change so that employers are protected when drug testing with the intent of increasing safety and productivity while reducing liability. 

SHRM added the following clarification: “OSHA noted that the memorandum would supersede any conflicting provisions in prior interpretive documents and clarified that most workplace drug-testing programs are permissible, including:

• Random drug testing.
• Drug testing unrelated to the reporting of a work-related injury or illness.
• Drug testing under a state workers' compensation law.
• Drug testing under other federal law, such as a U.S. Department of Transportation rule.”

Employees will now expect to be drug tested after an accident (provided the employers have a clear drug testing policy in place), and employers are no longer trapped in a confusing limbo about when it is permitted to test and who can be tested. 

In order to fully capitalize on the opportunity presented by the policy change, employers should review their drug testing policy. If the policy is clear and includes pre-employment testing, randoms, reasonable suspicion testing and post-accident testing, employers are well on their way to creating a drug-free workplace in 2019.