Last year, OSHA issued guidance regarding Post Incident or Post Accident drug testing which largely discouraged the practice. We have just been provided clarification indicating such testing is allowable, even encouraged:
“The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”Full text of recommendations may be found here: OSHA Guidance on Post Accident Drug testing, October 2018
It is essential that your policy regarding drug testing be specific and carefully worded to assure you can demonstrate the purpose of post-incident testing is part of such a safety program, and not to discourage reporting of incidents. Contact CMR for consultation on your policy.