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Post-Accident Drug Testing OSHA Clarification

On October 11, 2018, OSHA published a memorandum that walks back the hardline interpretation of the new rule OSHA published on May 12, 2016.

Date: 12/14/2018

The 2016 rule stated that unless there is a reasonable possibility that employee drug use caused an incident, testing the employee would be considered retaliation for reporting the injury.

The 2018 interpretation has been adjusted to allow employers to drug test an employee while investigating an incident. Reasonable possibility is not needed. The only time an employer would be at fault is if the testing took place specifically to penalize the employee rather than promote workplace safety.

Under both memorandums, the employer must test all employees whose actions could have contributed to the incident and not just the injured employee.

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