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
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.