October 11, 2018
The Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor, published a Memorandum to its Regional Administrators and State Designees providing clarification of OSHA’s position on Workplace Safety Incentive Programs and Post-incident Drug Testing under 29 CFR § 1904.35 (b) (1)(iv). The memo clarifies OSHA’s position that §1904.35 (b) (1) (iv) does not prohibit post-incident (post-accident) drug testing and further states that “most instances of workplace drug testing are permissible under its regulation.” An example of permissible drug testing includes: “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”
This memorandum rescinds previously issued interpretive documents on this regulatory issue. The final rule issued May 12, 2016, revising 29 CFR Parts 1904 and 1902 had been interpreted to severely limit employers’ post-injury/post-incident drug testing policies because they would discourage employees from reporting workplace injuries.
A copy of the memorandum is attached to this advisory and can be found at www.osha.gov/laws-regs/standardinterpretations/2018-10-11.