Are You Up to Speed on Drug Testing Requirements?

Originally published by the following source: SBC MagazineFebruary 18, 2020
by Laura Soderlund


Do you conduct employee drug tests?  Is your testing policy in compliance with current drug testing requirements, especially as they relate to safety incentive programs and post-incident reporting? Having a better understanding of both current standards and OSHA’s interpretation can help in navigating the complexities of drug testing in the workplace.

Legal and Illegal Grounds for Drug Testing Employees That Report Incidents

Legal Reasons for Drug Testing Illegal Reasons for Drug Testing
Prescreening drug tests for every employee Testing because an incident has occurred, without any grounds for suspicion (i.e. there is no evidence or reasonable suspicion of any employee drug use).
Testing all employees whose conduct could have contributed to an incident or near-miss due to reasonable suspicion Testing only the employee(s) who reported the incident or near-miss without testing other employees whose conduct could have contributed. A near miss is an unplanned event that did not result in injury, illness, or damage – but had the potential to do so.
Truly random drug test  

Person on the ground with an injury being helped by two people in hard hats

In October of 2018, OSHA published a memorandum to help clarify a rule that was set in place to prohibit employers from retaliating against employees that report work-related injuries or illnesses.

EHS Today explains the guidelines as follows:

This new interpretation untangles the complex legalities of post-incident drug testing programs and states that it is retaliatory or unlawful only when the employer seeks to penalize the employee for reporting work-related injuries. It also permits consistent post-incident and other instances of drug testing and encourages safety incentive programs. In the instance of a workplace incident, the guidelines state that companies must allow employees eight hours (or until the end of the shift) to report the incident. There has been some debate on whether companies are allowed to offer incentives for zero incident periods, since this process may encourage employees to not report incidents. The official language states that “rate-based incentive programs are also permissible as long as they are not implemented in a manner that discourages reporting.” However, employers are encouraged to offer incentives for reporting near-misses or other safety improvement methods.

The memorandum explains that “action taken under a safety incentive program or post-incident drug testing policy would only violate [the rule] 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.”

OSHA states in the October 2018 Standard Interpretations that most instances of workplace drug testing is permissible and outlines the following examples:

  • 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 the employee(s) who reported it.

By better understanding OSHA’s take on drug testing requirements, you can set up a policy that will focus on safety and health while following the requirements.

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Future Framing News articles regarding drug use will address a variety of topics including drug use for medicinal purposes, how to determine possible impairment, and best practices for drafting a drug and alcohol policy. If you have any input you’d like to share on this topic, please contact us at