There are many reasons why an employer might want to have employees perform random drug tests. For example, if a worker works with heavy equipment or hazardous substances, employers will want to ensure the worker is sober when doing so, for the safety of all employees. Still, some employees might question the legality of these tests. The Occupational Safety and Health Administration (OSHA) ruled that such tests are permissible under federal regulations.
The legality of workplace drug testing
Under 29 C.F.R. §1904.35(b)(1)(iv), employers are permitted to order workplace drug tests following a safety incident or as part of a safety incentive program, as well as random drug tests. The logic behind the rule is that these drug tests promote health and safety amongst employees. Moreover, allowing these tests reiterates an employer’s commitment to establishing a culture of safety in the workplace.
Employers cannot retaliate against workers who report injuries sustained on the job. Drug testing does not constitute unlawful retaliation as long as the testing is used to promote workplace safety, rather than simply penalizing a worker for reporting an on-the-job injury.
If an employer is requesting employees submit to random drug tests as part of a rate-based incentive program, employers have a duty to ensure doing so does not deter employees from reporting on the job injuries. Such programs should focus on creating a culture of safety, rather than simply reducing the number of workplace injuries. This way, there is no chilling effect on a worker’s right to report on the job injuries without fear of retaliation.
Make informed decisions
Employers who wish to institute workplace drug tests should be cognizant of when it is legal to do so. While there are many situations in which it is permissible to order a workplace drug test, there are some instances when doing so violates an employee’s rights. Agency clarification on these rules can be used by employers who need more information on how to responsibly order workplace drug tests.
