New Rule Bans Retaliatory Drug Testing of Employees Who Report Injury

Our company has a mandatory drug testing policy in the event of an accident/injury. Does the new federal regulation incorporated into the record-keeping requirements now prohibit blanket drug testing policies?

According to the U.S. Department of Labor (DOL), the new rule does not prohibit drug testing of employees, including drug testing pursuant to the U.S. Department of Transportation rules or any other federal or state law.

The new rule only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.

DOL states that the regulation was developed to improve tracking of workplace injuries and illnesses and to protect the employee’s right to report injuries and illnesses without fear of retaliation.

Examples

Examples of permitted post-incident drug testing include:

• Post-incident drug testing pursuant to a state or federal law, including Workers’ Compensation Drug Free Workplace policies. Random drug testing and pre-employment drug testing also are permitted, although in California the use of random drug testing is extremely limited.

• If there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness, such as injuries resulting from crane or forklift operations.

Not Triggers for Drug Test

However, injuries relating to carpal tunnel syndrome or insect bites, or even the case of an innocent bystander who was in the wrong place at the wrong time would not necessarily trigger a drug test.

Similarly, the time-honored collective bargaining agreement can be a slippery slope.

For example: a company’s collective bargaining agreement requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury. An employee then reports a lost-time injury that could not reasonably have been caused by drug use (again we will use the example of an insect bite or carpal tunnel syndrome). A drug test would not be necessary.

More Information

These guidelines are advisory in nature and informational in content.

Additional information can be found at www.osha.gov.


Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Mel Davis

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Mel Davis
Mel Davis joined the CalChamber in 2000 as a Cal/OSHA adviser specializing in Cal/OSHA and safety-related matters. He worked for Cal/OSHA for more than 23 years as a principal safety engineer and construction safety engineer. His responsibilities included managing the technical staff responsible for developing and revising California safety and health regulations, evaluating requests for variances from regulations, and conducting complaint and accident investigations at all types of construction sites.