Beginning December 1st, employers will need to abide by OSHA’s new final rule on reporting workplace accident or injury (29 CFR 1904.35). The rule clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries must be “reasonable and not deter or discourage employees from reporting.”

OSHA believes that blanket post-injury drug testing (automatic drug testing after every incident or injury) does not promote proper accident reporting and may be considered a form of adverse action that intimidates workers. OSHA believes this could lead to workers’ reluctance to report injuries.  Thus, this final rule requires employers to have a legitimate business reason for requiring a drug test, such as a reasonable belief that drug use may have contributed to the injury.

To comply with the OSHA rule, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have caused or contributed to the incident, and for which a drug test could accurately identify impairment caused by drug use.  The OSHA rule does not prohibit drug testing of employees,including drug testing pursuant to the Department of Transportation rules or any other federal or state law.  It only prohibits employers from using drug testing to retaliate against a person who reports an injury or illness. Employers should review their drug testing policies regarding workplace accidents, to ensure compliance with the OSHA rule.  Penalties can be upwards of $10,000, or over $100,000 for willful violations.

To read OSHA’s interpretation of the rule, see https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html

To read the full 29 CFR 1904.35, see www.federalregister.gov/d/2016-10443/p-549

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