Is Post-Accident Drug Testing Still Legal?

February 14, 2017

Last year, the Occupational Safety and Health Administration (“OSHA”) published a final rule that (1) made explicit the requirement that employers have a reasonable procedure for their employees to report work-related injuries and illnesses, and (2) made clear that employers cannot retaliate against employees for reporting work-related injuries. 

Last year, the Occupational Safety and Health Administration (“OSHA”) published a final rule that (1) made explicit the requirement that employers have a reasonable procedure for their employees to report work-related injuries and illnesses, and (2) made clear that employers cannot retaliate against employees for reporting work-related injuries. A link to the U.S. Department of Labor’s Memorandum on the rule can be found here. The rule’s impact on post-accident drug testing has caused the most consternation among human resource professionals.

The first question is whether or not your current drug-testing policy contains a “reasonable procedure” for employees to report work-related injuries and illnesses. The rule states that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” (29 C.F.R. 1904.35). OSHA has taken the following position as whether automatic post-accident testing would deter or discourage employees from reporting:

To strike the appropriate balance here, 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.

Thus, per OSHA, employers should not automatically conduct post-accident drug testing, regardless of the circumstances. A post-accident drug test without an “objectively reasonable basis for testing” would be a violation of this rule.

Of course, there are a number of reasons why always conducting a drug test after an accident is a good idea notwithstanding OSHA’s rule. For example, a company could be subjected to liability if it fails to drug test someone after an accident and that same person is involved in another accident that injuries a third party. If that employee was using drugs during the accident, the injured party could presumably sue the company for negligence because it failed to take action against someone they should have known was under the influence. Also, many commercial general liability insurance policies require automatic post-accident testing.

Thus, employers should review their current policy to determine whether your company requires post-accident drug testing in all circumstances. If so, engage in a cost-benefit analysis.

  • Is it really necessary or worthwhile to drug test after every accident?
  • Does it serve as a deterrent effect to your employees?
  • Does the potential liability of third-party claims outweigh the risk of an OSHA violation?
  • Should employers supplant automatic post-accident testing with the “reasonable suspicion” test in their policies?

The answers to all of these questions will depend in large part on your business and workforce.

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Boyd B. Nicholson, Jr., Managing Director, Haynsworth Sinkler Boyd, P.A., ONE North Main, 2nd Floor, Greenville, SC 29601