22 Nov OSHA issues memo clarifying drug testing policy
There has been a spate of incidents recently where employees who failed drug tests charged their
employers with violating OSHA regulations. The agency has now stepped up to strike these
To do so, the agency has issued a memorandum that reads, in part:
The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. §
1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug
testing. The Department believes that many employers who implement safety incentive programs
and/or conduct post-incident drug testing do so to promote workplace safety and health. In
addition, evidence that the employer consistently enforces legitimate work rules (whether or not
an injury or illness is reported) would demonstrate that the employer is serious about creating a
culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive
program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if
the employer took the action to penalize an employee for reporting a work-related injury or
illness rather than for the legitimate purpose of promoting workplace safety and health.
The paper continues on this track for some time, including some suggestions to help demonstrate
that your company is serious about workplace safety. Then it gets to this part:
In addition, most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv).
Examples of permissible drug testing include:
Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could
have harmed employees. If the employer chooses to use drug testing to investigate the
incident, the employer should test all employees whose conduct could have contributed to
the incident, not just employees who reported injuries.
To the extent any other OSHA interpretive documents could be construed as inconsistent with the
interpretive position articulated here, this memorandum supersedes them.
This bit, of course, is the key here.
Now, drug testing is all well and good, but the best thing would be to keep trouble out from the
get go, and that is best achieved by running adequate background screening.