Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.
Allow me to pause while this sinks in.
The agency concedes that employers might still lawfully do some post-accident testing on a case by case basis so long as they are willing to develop evidence pointing to, e.g., a given employee’s drug use as an accident cause. Of course it is precisely such effectively accusatory, singling-out testing that is most likely to provoke litigation for having unfairly cast suspicion on an individual employee.