DOTS - Doctors Occupational Testing Solutions

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Supporting the local community with the 7th Annual Kaweah Delta Pink Tea Party

On October 11, 2018 the Occupational Safety and Health Administration issued a memorandum clarifying 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.

This final rule was published on May 12, 2016 which initially added a provision which prohibited employers from retaliating against employees for reporting any work related injuries or illness.

Since that time there has been much debate on whether employers were able to conduct any post accident testing and this memorandum has clarified these questions and/or concerns.

This memo also clarifies other instances where workplace drug testing is permitted under § 1904.35(b)(1)(iv).

Random drug testing
Drug testing not related to the reporting of a work-related injury/illness (reasonable suspicion)
Drug testing conducted under a State's workers' compensation law
Drug testing conducted under Federal Law (DOT Drug Testing)
Drug testing conducted to understand the root cause of the workplace incident. (Employers should conduct testing on all employees who could have contributed to the incident, not just employees who reported the injuries).