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In a announcement to Regional Administrators anachronous October 11, 2018, OSHA antiseptic the agency’s position as to whether assertive types of biologic testing would be advised violations of 29 C.F.R. §1904.35(b)(1)(iv). That adjustment prohibits administration from absolution or acute adjoin an agent for advertisement a work-related abrasion or illness. As we discussed in an beforehand blog post, OSHA ahead appear annotation advertence that administration could not use “drug testing (or the blackmail of biologic testing) as a anatomy of adverse activity adjoin advisers who address injuries or illnesses.” Instead, administration were bound to biologic testing back there was a “reasonable possibility” that drugs or booze contributed to the blow or injury.

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In the October 11, 2018, memorandum, however, OSHA declared that:

“29 C.F.R. §1904.35()(1) (iv) does not prohibit abode assurance allurement programs or post-incident biologic testing. The Department believes that abounding administration who apparatus assurance allurement programs and/or conduct post-incident biologic testing do so to advance abode assurance and health. In addition, affirmation that the employer consistently enforces accepted assignment rules (whether or not an abrasion or affliction is reported) would authenticate that the employer is austere about creating a ability of safety, not aloof the actualization of abbreviation rates. Activity taken beneath a assurance allurement affairs or post-incident biologic testing activity would alone breach 29 C.F.R. §1904.35(b)(1)(iv) if the employer took the activity to amerce an agent for advertisement a work-related abrasion or affliction rather than for the accepted purpose of announcement abode assurance and health.”

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OSHA added stated that “most instances of abode biologic testing are permissible.” Examples of permissible biologic testing include:

Random biologic testing.

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Drug testing altered to the advertisement of a work-related abrasion or illness.

Drug testing beneath a accompaniment workers’ advantage law.

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Drug testing beneath added federal law, such as a U.S. Department of Transportation rule.

Drug testing to appraise the basis account of a abode adventure that afflicted or could accept afflicted employees. If the employer chooses to use biologic testing to investigate the incident, the employer should analysis all advisers whose conduct could accept contributed to the incident, not aloof advisers who appear injuries.

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The announcement assured by adage that to the admeasurement any added analytic abstracts could be construed as inconsistent with the position articulate here, this announcement supersedes them.

OSHA’s announcement is acceptable account for administration because it is now bright that administration charge not assay whether there was a “reasonable possibility” that drugs or booze could accept contributed to an accident. Instead, ample post-accident biologic and booze testing is acceptable (subject to applicative laws that may accept altered requirements) as continued as all advisers whose conduct could accept contributed to the blow are tested.

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Jackson Lewis P.C. © 2018

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