OSHA recently amended 29 C.F.R. Sec. 1904.35 to add two new provisions. First, Section 1904.35(b)(1)(i) makes explicit the longstanding requirement that employers have a reasonable procedure in place for employees to report work-related injuries and illnesses. Second, Section 1904.35(b)(1)(iv) states that an employer “must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” The language of Section 1904.35(b)(1)(iv) may potentially impact an employer’s post-accident drug testing policies.
While the new rule does not prohibit post-accident drug testing, the OSHA commentary to the rule states that an employer cannot use post-accident drug and alcohol testing in a way that would discourage employee reporting of illnesses or accidents. The commentary states that post-accident testing is only permitted if it is “reasonable,” and specifies that post-accident testing will be considered reasonable if “employee drug use is likely to have contributed to the [accident].” The commentary also states that “if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing.” The Department of Labor has also issued a memorandum providing that “OSHA will not issue citations under Section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law.”
Florida’s Drug Free Workplace Program, codified at Fla. Stat. §440.102, requires post-accident drug testing upon “reasonable suspicion” of employee drug use. See Fla. Stat. §440.102(4)(a)(2). Under the statute, reasonable suspicion exists where the employer has information that an employee has (1) caused, (2) contributed to, or (3) been involved in an accident while at work. Fla. Stat. §440.102(1)(n)(5) (emphasis added).
Based on the Department of Labor memorandum and Florida’s requirement of post-accident drug testing, a Florida employer participating in the Florida Drug Free Workplace Program may be able to absolve itself of potential liability under Section 1904.35(b)(1)(iv). Of course, to participate in the program, the employer must comply with the notice, education, and procedural requirements of the statute. If a Florida employer is not a participant in the Drug Free Workplace Program, and has in place a mandatory post-accident drug testing program, then it is at risk of a possible citation under OSHA’s new anti-retaliation regulations unless the program is in compliance with them.
29 C.F.R. 1904.35 can be viewed, in its entirety, at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=12779.
Additional detailed information and answers to questions are available from the Department of Labor at: https://www.osha.gov/recordkeeping/finalrule/.
 See Department of Labor Memorandum “Interpretation of 1904.35(b)(1)(i) and (iv)” found on the Department of Labor’s website at https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html.
Glennys Ortega Rubin is a partner in the Orlando office of Shutts & Bowen LLP.
Glennys is a seasoned litigator, representing companies of all sizes in a myriad of industries and in various forums, including mediation, arbitration ...
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