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The Occupational Safety and Health Administration (OSHA) has issued new regulations that will change the way in which employees and employers document and report accidents. This toolbox talk is addressed only to those parts of the new regulations that will affect the right of an employer to conduct a post-accident drug test.

OSHA requires reasonable procedures for the reporting of work-related accidents. Here is what OSHA said, "The final rule provides that employers must establish a "reasonable" procedure for employees to report work-related injuries and illnesses and clarifies that a reporting procedure is not reasonable if it would deter or discourage a reasonable employee from reporting." Conducting an automatic post-accident drug test is supposed to discourage employees from reporting accidents and is, therefore, not reasonable.

It seems odd for OSHA to restrict an employer's right to conduct a post-accident drug test in regulations changing the way in which employers and employees report industrial accidents. OSHA believes that an employee is less likely to report an accident if the employer conducts post-accident drug tests as a matter of routine. Therefore, OSHA reasons, the reporting of accidents will be less accurate because employees will under-report.

OSHA also believes that the current regulations do not make it plain enough that an employer cannot retaliate against employee for reporting an accident. In fact, employers may not be able to offer safety incentives such as gift cards or raffles available only to employees who have not had an accident.

OSHA published the following commentary on the new regulations.

Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.

. . .the final 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. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee 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, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety."

Before OSHA published the new regulations, courts outside of Virginia held that automatic post-accident drug testing was an unreasonable search and seizure, which violated workers' Fourth Amendment rights under the United States Constitution. In effect, the new regulations tell employers to think of themselves as police officers who need to document "probable cause" to conduct a search in the form of a post-accident drug test.

The persons who drafted these regulations have never had to supervise or discipline a labor force. In publishing the new regulations, OSHA gave the following example to justify restrictions on post-accident drug testing, " would likely not be reasonable to drug test an employee who reports a bee sting." That argument is just wrong. Consider this example. Suppose you are an insulation contractor who is replacing insulation in an attic. At the morning safety meeting, your on-site foreman warns your employees to look out for wasps' nests. One employee fails to look out for wasps' nest because of drug or alcohol impairment and is stung severely. What then? The regulations do not offer any guidelines to assist employers in complying with the restrictions on post-accident drug testing. In effect, the regulations are telling employers to get it right or face substantial fines.

Virginia is a "full delegation" state. Virginia operates its own OSHA program through the Virginia Department of Labor and industry. The program is the Virginia Occupational Safety and Health Compliance Program (VOSH).

While speaking with a representative of VOSH in a case in which I secured the dismissal of both citations against an employer without penalty, I asked whether Virginia intended to adopt the new regulations. The VOSH official with whom I spoke said that it was not certain whether or when Virginia would adopt these regulations. In my opinion, that statement is not accurate. There is a separate OSHA regulation which says that states operating their own OSHA programs must have "occupational injury and illness recording and reporting requirements that are substantially identical to the requirements" of the federal regulation. The new restrictions on post-accident drug testing are designed to encourage accurate reporting. The safe course is to consider revisions to post-accident drug testing policies.

I have posted a link to a Department of Transportation manual designed to help its managers determine whether there is "probable cause" to conduct a drug test. I will be glad to help with any questions that you may have.

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