April 01, 2017 Features

State Medical Marijuana Legalization and OSHA Anti-Retaliation Rules: Post-Accident Drug Testing Considerations for Employers

By Peter J. Gillespie

In recent years, workplace drug tests showing positive test results have increased steadily to a 10-year high.1 Employers concerned by these findings face an uphill battle given the recent loosening of restrictions on marijuana use at the state level. Moreover, despite the fact that marijuana remains illegal under federal law, the Occupational Safety and Health Administration (OSHA) has somewhat protected drug users from work-related discipline stemming from marijuana use. Specifically, based on findings from the National Highway Traffic Safety Administration (NHTSA),2 OSHA recently contended that mandatory drug testing of employees following a reported injury is a form of retaliation that violates section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. section 660(c).3 Moreover, OSHA has further advised employers that the agency does not view current drug testing methods as an effective way of determining whether a drug-related impairment caused or contributed to a workplace accident: “For substances other than alcohol, currently available tests are generally unable to establish a relationship between impairment and drug use. Employers should be aware that post-incident drug testing will not necessarily indicate whether drug use played a direct role in the incident.”4

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