As many employers know, OSHA published a final rule on May 12, 2016, that amended the Code of Federal Regulations to add additional provisions regarding proper reporting and retaliation for workplace reporting. OSHA took the position that certain workplace policies may deter or discourage proper workplace reporting, including disciplinary policies, incentive policies, and post-accident drug testing policies.

In other words, OSHA asserted that a blanket policy that requires drug-testing of any employee after a workplace accident is likely to discourage employees from reporting workplace injuries. Therefore, if an employee is drug-tested after an accident under a blanket policy and disciplined for violation of the policy, OSHA may later determine that the discipline was unlawful retaliation because the employer had no reasonable basis to conclude that drug use may have contributed to the accident.

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