March 6, 2018

Employers nationwide frequently overlook an administrative rule passed by the Occupational Safety and Health Administration (OSHA) in October 2016 governing when an employer may drug test an employee who reports a work-related injury. It is essential that employers have a thorough understanding of when they can­ — and cannot­ — conduct such drug tests to avoid violating the OSHA rule.

The OSHA rule, Section 1904.35(b)(1)(iv), is designed to encourage employees to report workplace accidents and injuries. To help accomplish that goal, the OSHA rule prohibits employers from using drug testing to discipline employees who report such injuries or illnesses, while still allowing drug testing to help determine the root cause of workplace injuries and illnesses in appropriate circumstances.

The OSHA rule only prohibits an employer from drug testing employees for reporting work-related injuries or illnesses if the employer lacks an objectively reasonable basis to believe that the reporting employee's drug or alcohol use contributed to the accident or injury. To prove a violation of the rule, OSHA needs to establish that 1) the employee made a protected report of an injury or illness to the employer, 2) the employer took an adverse action against the employee and 3) the reporting by the employee of the work-related accident or injury caused the employer to take such an adverse action.

If the employer has reasonable basis for believing that drug use by the reporting employee could have contributed to the work-related injury or illness, then the employer may drug test that employee.

Factors Affecting the Reasonableness of Drug or Alcohol Testing

When evaluating the reasonableness of drug or alcohol testing a particular employee who reports a work-related injury or illness, OSHA considers several factors, including:

  • Whether the employer had a reasonable basis for concluding that drug or alcohol use could have contributed to the injury or illness, and that the result of the test could therefore provide insight into why the injury or illness occurred.
  • Whether other employees involved in the accident that caused the injury or illness were also tested, or whether the employer tested only the employee who reported the injury or illness.
  • Whether the employer has a heightened interest in determining if drug or alcohol use could have contributed to the injury or illness due to the hazards of the work being performed when the injury or illness occurred.

Considering an Example Scenario

OSHA provided the following example to put these rules into perspective: A crane accident injures several employees working nearby, but not the crane operator. The crane operator reports the incident. The employer doesn't know the cause of the accident, but there is a reasonable possibility that it could have been caused by 1) the operator's error, 2) those working underneath the crane or 3) mistakes made by other employees responsible for ensuring that the crane was in safe working condition. According to OSHA, it would be reasonable to require drug testing of all employees involved, including the employee who reported the incident, whose conduct could have contributed to the accident. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight as to the root causes of the incident. If, however, the employer tested only the employee who reported the accident but not the employees whose conduct also could have contributed to the incident, then testing only the employee who reported the incident or accident might violate the OSHA rule.

Before drug testing employees who report work-related incidents or accidents, employers should consider whether they have an objectively reasonable basis for conducting the drug test of the reporting employee. For information regarding a specific matter, contact your Much Shelist attorney or a member of our Labor & Employment practice.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.