Today, OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register. In the final rule OSHA states that “blanket post-injury drug testing policies deter proper reporting” and concludes that:

“the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. 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.  For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.  Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.  In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.”

(Emphasis added).  The OSHA rule has no impact on post-accident testing mandated by federal regulations or permitted by state workers’ compensation laws (e.g., premium reduction laws).  The rule states that “[i]f an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing.”  However, post-accident drug and alcohol testing is unregulated in many states.

Numerous questions about post-accident drug and alcohol testing are raised by the OSHA rule. For example:

• While OSHA states that “reasonable suspicion” is not required for post-accident testing, it is not clear what OSHA means by stating that there should be a “reasonable possibility” that drug use was a “contributing factor” to the reported injury or illness.

• It is unclear what OSHA means by “the drug test can accurately identify impairment caused by drug use.” In general, urine drug tests detect whether an individual has used drugs in the last 2 to 4 days.

• OSHA states drug testing “that is designed in a way that may be perceived as punitive” may deter reporting of injuries. But how can an employer determine in advance the subjective perception of an employee to a particular drug test, and is this a valid standard in any case? Further, it may invite abuse to frustrate lawful testing: employees who know they are going to test positive may object to a post-accident drug test as “punitive” even if it is part of a well-designed drug and alcohol testing program that is intended to promote workplace safety.

OSHA intends to issue additional guidance concerning the new rule. Legal challenges to the rule also are anticipated.

In the interim, employers who conduct post-accident drug and/or alcohol testing should review their policies to ensure that they are not conducting overly broad “automatic” post-injury testing that could be viewed as a deterrent to injury reporting by employees. This is particularly true for injuries and illnesses that appear to have no plausible connection to drug or alcohol abuse, such as, for example: allergic reactions, animal or insect bites, back or muscle strains caused by overexertion, carpal tunnel syndrome, and diabetic episodes, among other things.

Due to the unsettled nature of the questions raised by the OSHA rule, employers who conduct post-accident drug and alcohol testing should follow this issue closely and should consult with counsel to determine whether their post-accident drug and alcohol testing programs comply with all applicable laws.