United States: OSHA Limits Post-Accident Alcohol & Drug Testing, Expands Scope Of Anti-Retaliation Provisions

Last Updated: August 9 2016
Article by Asad Rizvi

A new OSHA rule will curtail the ability of employers to conduct post-incident alcohol and drug testing, while at the same time expanding employer liability for retaliation and dramatically transforming the manner in which injuries and illnesses are reported.

On May 12, 2016, the Occupational Safety and Health Administration published a final rule (92 Fed. Reg. 29624) revising its Recording and Reporting of Occupational Injuries and Illness regulations. To the extent not already done so, employers will be required to establish a reasonable procedure for employees to report work-related injuries or illnesses promptly and accurately. The new anti-retaliation regulations will become effective on November 1, 2016 while the electronic recordkeeping requirements will go into effect on January 1, 2017.

Here is a summary of the final rule's key provisions: 

Limitations on Post-Accident Drug Testing

Perhaps one of the most significant developments of the new rule is the limits it aims to place on employers' post-accident/incident alcohol and drug testing policies. Employers have for years relied on the indisputable health and safety concerns that necessitate immediate post-accident alcohol and drug testing in the workplace. Indeed, the U.S. Supreme Court has emphasized that mandatory post-accident testing is a crucial deterrent in safety-sensitive positions and is intended to prevent employees from using alcohol and drugs in the workplace before an accident occurs. Ironically, OSHA has taken a different view on this longstanding policy, arguing that such policies have a chilling effect on the reporting of injuries or illness by instilling fear in employees about mandatory drug testing. OSHA's new rule seeks to loosen the grip that employers hold over employees with such policies, claiming that it aims to "strike the appropriate balance." 

Under the final rule, employers will be prohibited from discharging or discriminating against an employee for reporting a work-related injury or illness. Specifically, the rule prohibits "any adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness." According to OSHA, "blanket post-injury drug testing policies" are unlawful because they "deter proper reporting" and drug-testing, alone, can qualify as an "adverse employment action."

Post-incident drug testing will now need to be limited to "situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use." For instance, OSHA explains that drug tests would be inappropriate for an employee who has reported a bee sting, a repetitive strain injury or an injury caused by a lack of machine guarding or a machine or tool malfunction. Employers with mandatory post-accident drug testing policies will need to reassess their policies.

Doubling Down on Safety Incentive Programs

Reasoning that employer safety incentive programs which deny benefits to employees for reporting an injury or illness constitute a form of retaliation, the final rule expressly forbids such programs from being used as an instrument to disincentivize health and safety reporting. Under the new rule, an employer may not "take adverse action against an employee for reporting a work-related injury or illness, whether or not such action was part of an incentive program." It would be unlawful under the new rule, for instance, to deny a segment of a workforce a safety bonus under such a program due to the injury report of a single employee.

Nonetheless, safety incentive programs that reward employee participation in safety-related activities, the investigation of injuries or following safety rules, will remain legitimate programs not subject to scrutiny under the new anti-retaliation provision.

Anti-Retaliation Liability Expanded

The final rule represents a significant expansion of OSHA's right to penalize employers for engaging in what the agency perceives to be unlawful retaliation. The new rule empowers OSHA compliance officers to cite employers for retaliation where employees are disciplined for reporting injuries and illness even where the employee has not filed a complaint. Currently, OSHA investigates employer retaliation only after an employee files a Section 11(c) whistleblower complaint, which must be done promptly within 30 days. Under the new rule, compliance officers will be authorized to cite employers for retaliation as late as six months after the date of the alleged violation. 

The new anti-retaliation rule also prohibits employers from disciplining employees who fail to immediately report an injury or illness. According to OSHA, such policies are problematic because they punish employees who suffer from slow-developing or chronic injuries or illnesses (i.e. musculoskeletal disorders, lead exposure) and are thus unable to report injuries instantaneously. Under the new rule, employer policies must allow employees a "reasonable time" to report an injury or illness to be deemed compliant. 

Understandably, the new anti-retaliation regulations have generated a great deal of criticism from the business community. In response, OSHA has delayed the effective date of the anti-retaliation provision from August 10, 2016 to November 1, 2016 to conduct "additional outreach and provide educational materials and guidance for employers."

Electronic Injury and Illness Reporting

Employers will need to submit their OSHA logs electronically. The procedures for doing so will vary based on the size of the employer (part-time, seasonal and temporary workers must be counted). All information from the logs will need to be submitted electronically, except for employee names, employee addresses, health care professional names and health care treatment facilities, via a "secure Web site for the electronic submission of information." The data will be made publicly available and will function as a "shame" list for employers that OSHA believes will "nudge" employers into compliance, allow members of the public to make decisions about which companies to engage in business and to allow employees to compare their workplace with those with superior health and safety records. These new recordkeeping requirements may have important implications on employee privacy and corporate PR efforts.

                          Individual Employer Establishments with 250 or More Employees

Individual employer establishments with 250 or more employees will be required to submit information electronically from their 2016 Form 300A by July 1, 2017. Beginning on July 1, 2018, these employers will need to submit information from all 2017 OSHA Forms (300A, 300 and 301) no later than July 1, 2018. Effective 2019 and each year thereafter, applicable employers will need to submit all their OSHA logs by March 2nd.

                          Individual Employer Establishments with 20-249 Employees

For smaller employers, OSHA will limit electronic submission to "high hazard industries" (e.g. nursing homes, department stores, construction, utilities), requiring the submission of Form 300A for year 2016 no later than July 1, 2017. Form 300A for year 2017 will need to be submitted by July 1, 2018. And starting in year 2019 onward, these employers will be required to submit all OSHA logs by March 2nd.

Recommended Best Practices for an OSHA-Compliant Workplace

Employers will undoubtedly face challenges in navigating the myriad of new health and safety regulations embodied in the final rule. While the enforcement authority of OSHA has greatly expanded, the power of employers to regulate health and safety issues in the workplace has been set back. The stakes for employers are great, particularly given OSHA's recent increase of fines and penalties by nearly 80 percent.

The new rule also mandates that employers notify employees about these changes. Toward this end, OSHA has issued an informational poster designed to inform workers about their right to report injuries or illness, without being retaliated against, and informing employers that it is illegal to retaliate against an employee for reporting an injury or illness.

Employers can - and should - adopt the following best practices to assist in their compliance with the new requirements:

  • Narrowly tailor blanket post-accident alcohol and drug testing policies to circumstances where there is a "reasonable suspicion" that substance abuse may have contributed to the accident.
  • Adhere to drug testing policies that comply with other existing state or federal laws (e.g. Department of Transportation regulations, workers' compensation laws) as such compliance measures are not retaliatory or designed to deter the reporting of injuries or illnesses.
  • Revise safety incentive programs to ensure that employees who report injuries or illnesses are not disqualified for awards or benefits (e.g. bonuses) while maintaining programs that reward employees for engaging in health and safety training and investigations.
  • Post the new OSHA informational poster in a clear and prominent work location to inform employees about their rights.
  • Review all employer policies to eliminate provisions that could be interpreted to "deter or discourage" a reasonable employee from accurately reporting a workplace injury or illness.
  • Review the educational materials and guidance that OSHA intends to release to aid employers in their compliance with the new anti-retaliation provisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions