United States: OSHA, Drugs, And Rock ‘N' Roll: A Musical Soundtrack To OSHA's New Drug Testing And Anti-Retaliation Rule

Last Updated: December 6 2016
Article by Travis W. Vance

It's the first of December. Significant changes in workplace safety law take effect today.

OSHA's new drug testing and anti-retaliation rule, which alters the circumstances when drug testing can be conducted and reemphasizes the protections for employees to report injury and illnesses without fear of retaliation, is now in effect. The final rule, which has likely led to more calls to our firm than any other change we've seen this year, contains three key provisions of which employers should be aware.

The New Rule's Key Provisions

First, a blanket post-accident drug testing policy would likely be considered illegal by OSHA under the new rule.  

Second, an employer's internal procedures for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting.

Finally, an employer may not award incentives based on the number of injuries or illnesses that are reported or occur during a certain period of time (e.g., a cash prize raffle if no recordable injuries take place) because such practices may deter the reporting of such incidents.

Perhaps even more importantly, however, employers can likely be cited for violation of the new rule and, at the same time, face a retaliation complaint filed by a current or former employee. This development greatly enhances the potential liability to an employer for any discipline issued for violation of safety rules.

Grasping the New Rule and Implementing its Provisions at Your Workplace

Completely grasping new requirements and implementing them in your workplace, especially those like the landscape-altering provisions of OSHA's new rule, may often be difficult. Sometimes grouping or associating new items with our favorite music helps us to retain complicated information.

In order to ensure compliance with OSHA's new rule, consider using the following soundtrack to help remember and understand its new obligations.


Track One- "A Long December" – Counting Crows

This hit from 1996 reminds us that OSHA's new rule is effective December 1, 2016.

Track Two- "May We All"- Florida Georgia Line/Tim McGraw

The new rule applies to all employers in states where the Federal government enforces the OSH Act- https://www.osha.gov/dcsp/osp/. State plan states likely will adopt the rule at some point during the next six months.

Track Three- "Crash Into Me" - Dave Matthews Band

OSHA now believes a blanket post-accident drug testing policy would be a violation. Under the new rule, even mobile equipment accidents or "crashes" are not, alone, a sufficient basis to conduct a drug test. An employer must also establish an objectively reasonable basis that an impairment due to drugs or alcohol likely led to the accident.

Track Four - "Whiskey & You" – Chris Stapleton

Track Five - "Take Me Home Tonight" – Eddie Money

Track Six - "Unsteady" – X Ambassadors

As one may imagine, there is no shortage of songs regarding impairment caused by drug or alcohol use.

According to OSHA's new rule, an employer may likely conduct drug testing after December 1, 2016 only when: (1) the employer has a reasonable basis that the incident or injury was likely to have been caused by the employee's impairment; and (2) the drug test used will determine whether the employee was impaired at the time of the incident or injury.

Specifically, OSHA has provided the following guidance on this portion of the new rule:

To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. 

Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.

In order to satisfy OSHA's new requirement, we recommend that employers adopt a reasonable suspicion test (or similar test) to determine if there was an impairment at the time of the incident or injury. This is especially appropriate for employers who already drug test when they have a reasonable suspicion (non-accident related) of alcohol or drug use. Likewise, increasing random drug testing may prove valuable to employers, especially in light of OSHA's new requirement that the post incident/injury drug testing selected by the employer actually determine impairment at the time of the incident/injury versus mere historical drug use (which may be costly or unavailable to employers).

Track Seven- "Signs" – Tesla

In doing so, have your supervisors attempt to determine if an employee "appears" to be under the influence of an alcoholic beverage, drugs (including controlled substances and prescriptions) or both, and that such impairment led to his or her accident or injury.  In making this determination, your supervisor should observe, among other behavior, the employee's walking, standing, speech, demeanor, eyes, appearance, breath, and movements. Where possible, get another supervisor or management representative to also observe the employee. Make sure to document your findings and consider adjusting your post incident/injury forms to remind those individuals to document this behavior (if observed) and/or hold formal training on identifying and documenting such observations as this could be critical during an OSHA investigation.


Track Eight- "I Will Wait" - Mumford & Sons

Track Nine-"Patience" – Guns N' Roses

Track Ten- "Shiftwork" – Kenny Chesney & George Strait

Under the new rule, OSHA prohibits any reporting policy that disciplines employees for failure to "immediately" report injuries or illnesses. Instead, employers must "wait" and give employees a reasonable amount of time, such as until the end of the shift or eight hours to report such incidents. 

Track Eleven- "Money" – Pink Floyd

Track Twelve- "Moneytalks" - AC/DC

OSHA finally will also prohibit safety incentive programs that deter (in OSHA's mind) the reporting of injuries. For example, withholding a cash prize drawing or other award to employees because of a reported injury or illness would violate OSHA's new rule. This practice has long been frowned upon by the agency. A good alternative is to encourage and incentivize employees to participate in other safety related causes, like a safety committee or reporting near misses. See OSHA's Recommended Practices for Safety and Health Programs.


Track Thirteen- "Battleships" – Daughtry

Making the changes suggested by OSHA's new rule may be difficult for some employers. Traditions, like "battleships," are often difficult to alter. Take advantage of this opportunity to make changes that enhance workplace safety at your facilities. Creativity and changes that make employees feel safer may boost morale. "We've always done it this way" are words of restraint and limitation.  Also, remember that OSHA loves non-management participation in these decisions and it is more difficult for OSHA to criticize an idea as retaliatory that came from the non-management ranks.

Track Fourteen- "Bad Company" – Bad Company

Track Fifteen- "Calling Baton Rouge" – Garth Brooks

As noted, the new rule likely allows OSHA to cite an employer for violation of the rule, in addition to any retaliation claim that an employee may file. Don't be a "bad company" and ignore OSHA's requirement; examine your policies to determine if a change is needed. OSHA likely will not inspect your site solely for the reason to ascertain your compliance with the new rule. However, an employee may "call" OSHA's local area office and report retaliatory practices under the new rule, which likely will prompt a visit. Additionally, reviewing these policies during an inspection, much like reviewing 300 logs and SDS sheets, is easy and can lead to potential quick citations that can be avoided with minimal policy changes.

With Donald Trump's victory in November, we believe that the drug-testing and anti-retaliation rule may be altered at some point in the first or second year of the Trump Administration. However, employers should not ignore OSHA's new requirements in the meantime. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Travis W. Vance
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.