OSHA Clarifies Circumstances Under Which Post-Accident Drug Testing Violates Federal Law

This month the Occupational Safety and Health Administration issued a memorandum which seeks to clarify the extent to which OSHA will consider post-accident drug and alcohol testing to be a violation of federal regulations. The memorandum addresses questions that have arisen about a rule that OSHA published in May. That rule, theElectronic Recordkeeping Rule, prohibits retaliation against employees who report workplace injuries and illnesses. In comments to that rule OSHA previously stated that the 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.” Those comments ignited a firestorm, and since then there has been debate as to whether all post-accident drug or alcohol testing is now prohibited.