United States: OSHA, Drugs, And Rock ‘n' Roll: A Musical Soundtrack To The New Drug Testing Rule

Last Updated: January 9 2017
Article by Travis W. Vance

Significant changes in workplace safety law took effect on December 1 when the Occupational Safety and Health Administration's (OSHA's) new drug testing and anti-retaliation rule went into effect. The rule, which reemphasizes the protections for employees to report injuries and illnesses without fear of retaliation, also alters the circumstances under which you can require your employees to submit to a drug test.

When learning new information, it sometimes helps to retain the material if you associate the items with your favorite music. That's why we're providing you with a soundtrack of songs to help you remember and understand your new obligations.

Key Provisions Of The New Rule

Before introducing the songs, it will be helpful to review the key provisions of the new rule. First, it's likely that OSHA will now consider any blanket post-accident drug testing policy to be illegal. Second, your internal  procedures for reporting work-related injuries and illnesses must be reasonable and cannot deter or discourage employees from reporting. Finally, you 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 OSHA believes such practices may deter the reporting of such incidents.

Perhaps more importantly, you can likely be cited for a violation of the new rule even while facing a retaliation complaint from a current or former employee. This development greatly increases your potential exposure if you are to be found in violation of the new safety rules, so the time to learn the details is now.

Side One: The Basics

Track One: "A Long December" – Counting Crows. This 1996 hit reminds us that OSHA's new rule became effective on December 1, 2016.

Track Two:  "May We All" – Florida Georgia Line/Tim McGraw. The rule applies to all employers in states where the federal government enforces the Occupational Safety and Health Act (OSH Act). State plan states will likely 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 illegal. Under the new rule, even mobile equipment accidents or crashes are not, alone, a sufficient basis to automatically conduct a drug test without running afoul of the new rule.  

Track Four:  "Whiskey & You" – Chris Stapleton

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

Track Six: "Unsteady" – X Ambassadors

As one might imagine, there is no shortage of songs about drug or alcohol impairment. According to OSHA's new rule, you may conduct drug testing only when you have a reasonable basis to believe that the incident or injury was likely to have been caused by the employee's impairment, and that the drug test will determine whether the employee was impaired at the time of the incident or injury.

Although OSHA has stated that employers need not specifically suspect drug use before testing, it has also said that you should be aware of a "reasonable possibility" that drug use was a contributing factor in order to require testing. The agency also states that drug testing cannot be designed in a way that may be perceived as punitive or embarrassing to the employee, as that would likely deter injury reporting and run afoul of the rule.

In order to satisfy OSHA's new requirement, you should adopt a reasonable suspicion test (or similar test) to determine if there was an impairment at the time of the incident or injury before sending an employee to be tested. This is especially appropriate if you already drug test your employees when you have a reasonable suspicion of alcohol or drug use which is not accident related.

Track Seven: "Signs" – Tesla. To perform reasonable suspicion testing, have your supervisors look for signs to determine if an employee appears to be under the influence of alcohol or drugs (including controlled substances and prescriptions). Your supervisor should observe the employee's walking, standing, speech, demeanor, eyes, appearance, breath, and movements, among other behavior.

Where possible, have another supervisor or management representative also observe the employee. Make sure to document your findings and consider adjusting your post-incident forms to remind your managers to record this behavior. Finally, make sure to formally train your supervisors on identifying and documenting such behaviors.

Side Two: Getting Down Into The Details

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 will not permit any policy that disciplines employees for failure to "immediately" report injuries or illnesses. Instead, you must have patience, 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 will also prohibit safety incentive programs that, in the agency's opinion, deter employees from reporting 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 OSHA. A good alternative is to encourage and incentivize employees to participate in safety-related causes like a safety committee, or for reporting near-misses. See OSHA's Recommended Practices for Safety and Health Programs.

Bonus Tracks! Lessons For Employers

Track Thirteen:  "Battleships" – Daughtry. Making the changes suggested by OSHA's new rule may be difficult for some employers. Traditions, like the trajectory of battleships, are often difficult to alter. Take advantage of this opportunity to make changes that enhance workplace safety at your facilities. If workplace practices make employees feel safer, you may end up boosting morale. "We've always done it this way" are words of restraint and limitation, so remove them from your vocabulary when transitioning to life under the new rule.

Track Fourteen: "Come Together" – The Beatles. OSHA loves non-management participation in safety-related decisions, so incorporate ideas from your workers when revising your practices. As an added bonus, it is more difficult for OSHA to criticize an idea as retaliatory if it came from the non-management ranks.

Track Fifteen:  "Bad Company" – Bad Company. As noted, the new rule likely allows OSHA to cite you for violating a rule even while an employee is maintaining a retaliation claim against you at the same time. Don't be a "bad company" and ignore OSHA's requirement. Instead, examine your policies to determine if a change is needed.

Track Sixteen:  "Calling Baton Rouge" – Garth Brooks. OSHA is not likely to inspect your site solely to determine 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 will likely prompt a visit. Once on site, investigators can quickly and easily review these policies – much like the way they review 300 logs and SDS sheets – leading to quick and easy citations. These can be avoided through minimal policy changes.

<<Record Needle Scratch>> What About Trump And Puzder?

With Donald Trump's victory in November, and Andrew Puzder's nomination to oversee the Department of Labor, we  believe the drug-testing and anti-retaliation rule may be altered at some point in the next several years. The highest-ranking officials in the new administration are not fans of employment regulations.

However, employers should not ignore OSHA's new requirements in the meantime. Although the writing may be on the wall for these rules to be scaled down or scrapped altogether in the future, you have a clear obligation to comply until that happens. 

An earlier version of this article originally appeared in  EHS Today and the Fisher Phillips  Workplace and Safety Blog.

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
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions