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New OSHA Accident Reporting Rules Rule Out Mandatory Post-Accident Drug Screening

Many employers have policies and procedures that mandate drug and alcohol testing in the wake of a workplace accident, regardless of whether there is any suspicion that the employee involved was impaired. However, effective August 10, 2016, OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries, and that procedure cannot deter or discourage employees from reporting a workplace injury. Though the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s May 12, 2016, commentary accompanying the final rules specifies that the agency views mandatory post-accident testing as deterring the reporting of workplace safety incidents, and employers who continue to operate under such policies will face penalties and enforcement scrutiny.