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Q. Are there any limitations on my company’s ability to require employees to submit to drug and alcohol testing after an accident?
A. In May 2016, OSHA published a final rule that, among other things, amended the Occupational Safety & Health Act (OSH Act) to prohibit employers from retaliating against employees for reporting a work-related illness or injury. In the preamble to that final rule, OSHA cautioned that a blanket rule that mandates drug/alcohol testing after every accident, injury or illness could be seen as retaliatory. Instead, before requiring an employee to submit to post-accident testing, OSHA said that there must be a “reasonable possibility” that drug or alcohol use caused or contributed to the reported injury or illness. Thus, for example, it would not make sense to test an employee who reported a repetitive strain injury from typing, since drug or alcohol use is not likely to be involved.