OSHA’s final recordkeeping rule confirms, among other things, post-accident drug testing does not constitute retaliation

OHSA issued a final rule regarding recordkeeping, which, among other things, confirms its position that, contrary to a 2016 Obama-era rule, post-accident drug testing does not constitute prohibited retaliation.

In response to concerns about the application of the 2016 final rule to employee drug testing and incident- based incentive programs, OSHA notes that the employee protection provisions promulgated by that final rule and codified at 29 CFR 1904.35 neither ban drug testing employees involved in workplace injury or illnesses, nor prohibit incident-based incentive programs. Rather, §1904.35(b)(1)(iv) merely prohibits employers from implementing these programs to penalize workers ‘‘for reporting a work- related injury or illness.’’ Id. (emphasis added). … To the extent the 2016 preamble suggested otherwise, it has been superseded. While not the focus of this particular rulemaking, that memorandum accurately reflects OSHA’s position and addresses the commenters’ concerns.

Source: “Tracking of Workplace Injuries and Illnesses,” 84 Fed. Reg. 380 (1/25/19)