OSHA also used the preamble to the Final Rule to caution employers about “blanket”
post-injury drug-testing policies. The Final Rule does not prohibit drug-testing policies,
but language in the preamble cautions that any such policy must be very narrowly
tailored and there must be a reasonable possibility that drug use by the reporting
employee was a contributing factor to the injury. OSHA states that such policies should
be limited to situations in which the employee’s 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, OSHA would likely not consider drug testing reasonable following
an injury caused by lack of machine guarding or a tool malfunction.
Also, a test that
merely indicates the presence of drugs in an employee’s system, or “recent” drug use,
and that does not necessarily identify an impairment that resulted from the drug use may
run afoul of the Final Rule. OSHA does make clear, however, that drug or alcohol testing
that is required to comply with state or federal law (for example, testing of commercial
drivers under Department of Transportation regulations) will not violate the Final Rule
because its motives are not retaliatory.
With little more than the (unenforceable) guidance provided by the preamble to the Final
Rule, it is difficult to predict at this early stage how OSHA will respond to issues relating
to drug-testing policies. However, the treatment of this issue in the preamble would
suggest that OSHA will take a strict view of any such policies.
Going forward, employers
are cautioned to consider very carefully how drug-testing policies are crafted and
implemented.
Endnotes
1. Subparts affected by the Final Rule include §§1904.35, 1904.36, 1904.41 and
1902.7.
2. Note that, for the first year only, employers will only be required to submit Form 300A,
the summary of injuries and illnesses.
3. In its proposed rule, OSHA anticipated that employers would have to submit
information on a quarterly basis. However, after considering public comment, only
annual submission will be required under the Final Rule.
4. Applies to certain designated industries as set forth in Appendix A to Subpart E of 29
C.F.R. § 1904.
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