In an October 11, 2018 memorandum to Regional Administrators, OSHA clarified that 29 C.F.R. § 1904.35(b)(1)(iv), which prohibits employers from retaliating against employees for reporting work-related injuries or illnesses, does not prohibit post-incident drug testing. When the 2016 rule was originally promulgated, OSHA took the position that employers could not use “drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Instead, employers were limited to using drug testing only when there was a “reasonable possibility” that drugs or alcohol contributed to the workplace accident or injury. Under its… Read more
