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Retaliation & Drug Testing


Last year, the Occupational Safety and Health Administration (OSHA) began enforcing a regulation that restricts certain employment policies from perceived retaliation. Though there have been rules in place to prevent retaliation against an employee who reports a work-related illness or injury for years, this new rule has expanded into new dimensions, including alcohol and drug testing.

(Related Article: Federal Rule for DOT Drug Testing Changed in January 2018)

Requiring an employee to take a drug or alcohol test after they report an incident can be seen as a vindictive move by employers. While some post-incident tests may be coincidental, OSHA has decided that it can be an abuse of power by the employer as they may be looking for a reason to fire a certain employee.


When Can You Test for Alcohol/Drugs?


OSHA’s new rule only addresses post-accident testing; it does not affect new hire testing, reasonable suspicion, and random testing. However, there are some circumstances in which an employer can request a test after an accident.

(Related: Drug/Alcohol Testing at Worksite Medical®)

Under the new rule, post-accident drug-testing is okay only if there is an “objectively reasonable basis.” According to OSHA, this can include situations where employee drug use is likely to have contributed to the incident, and/or when the drug test can accurately identify impairment caused by drug use.


What is an “objectively reasonable basis”


  • Is there reasonable evidence that the employee’s actions contributed to the accident? Did they misuse equipment or act carelessly?
  • Is there reasonable evidence that the employee involved was under the influence of drugs or alcohol during the incident?
  • Is there reasonable evidence that the influence of drugs or alcohol caused the accident? For example, was a drunk employee driving a construction vehicle that crashed?

View the reasonable suspicion checklist to see if testing might be permitted.


Testing Outside of Accidents


OSHA’s rule should urge employers to consider drug and alcohol testing before any accidents happen as a preventative measure. You can test employees without wasting a day of work with Worksite Medical.

Our mobile medical units can come directly to your work site to perform drug testing and other medical surveillance services. We also have several walk-in clinics in Maryland and Pennsylvania.

Call us today at 1-844-OCCUMED to learn more about our services or schedule an appointment.

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