NEW OSHA Commentary on Post-Accident Testing

After months of waiting, the Occupational Safety & Health Administration (OSHA) recently released information to explain how their May 2016 ruling, the New Electronic Accident Reporting Rule (29 CFR 1904.35), impacts post-accident drug testing. Because the purpose of this new rule is to improve the rate and accuracy of injury and illness reporting, OSHA’s concern has been that post-accident drug testing could be seen as discouraging or retaliatory and thereby deter employees from reporting workplace accidents and injuries.

Per the newly released commentary, for an employer to conduct post-accident drug testing their actions must be reasonable, not unduly burdensome and “not deter a reasonable employee from reporting” an accident.

Here is a more detailed summary of how to remain “within bounds” of OSHA’s stance on post-accident testing:

Non-discretionary, objective, post-accident testing established in corporate policy and pre-announced to employees should be consistently applied following an accident (as defined in the employer’s policy) and be administered to anyone who could have caused or contributed to the accident.
If drug use could not reasonably have contributed to a particular injury, such as a repetitive motion injury like carpal tunnel syndrome, and the employer has no other reasonable basis for requiring a drug test, the employer is prohibited from drug testing. Employees should not be post-accident drug tested simply because they report injuries unless the drug test is conducted pursuant to a state workers’ compensation law, other state or federal law, or a company’s private insurance policy.
At the same time, the memo states that “employers need not specifically suspect drug use before post-incident testing, but there should be a reasonable possibility that drug use by the reporting employee could have contributed to the reported injury or illness.”
OSHA will not issue citations for any drug testing conducted under a state workers’ compensation law, other state or federal law, or a company’s private insurance policy.

OSHA also neutralized its statement about having employers apply drug testing that could prove impairment. (This is important because drug testing measures use not impairment.) OSHA now states that “drug testing may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.”

In order to issue a penalty for violating this new rule (expected to be as high as $12,471 per violation and $124,712), OSHA will be required “to prove that the employer took adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason.”

The new rule also addresses other areas of concern, including incentive and disciplinary programs. For in-depth review of these provisions, visit:

For assistance in determining if your current drug-free workplace policy/program is in line with OSHA’s new commentary, contact Working Partners® at 614.337.8200.