OSHA Clarifies that Safety Incentives and Post Incident Drug Testing ARE Permitted
By Susan BakerOctober 16, 2018
In May 2016, as part of its rule revisions, OSHA published a final rule that prohibited employers from retaliating against their employees for reporting work-related injuries or illnesses. 29 C.F.R. § 1904.35(b) (1) (iv). OSHA interpreted this provision to apply to workplace safety incentive programs and post-incident drug testing policies. The rule caused considerable uncertainty as to whether OSHA would deem such programs and drug testing to be retaliatory.
On October 11, 2018, OSHA issued a memorandum clarifying its position that the regulations "does not prohibit workplace safety incentive programs or post incident drug testing." OSHA recognized that "many employers who implement safety incentive programs and/or conduct post incident drug testing do so to promote workplace safety and health." An employer who consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer was serious about creating a culture of safety. Such action would only violate OSHA’s anti-retaliation "if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health."
OSHA recognized that "most instances of workplace drug testing are permissible." Permissible drug testing include: random drug testing; drug testing unrelated to the reporting of a work related injury or illness; drug testing under a state workers’ compensation law; drug testing under other federal law, such as the U.S. Department of transportation rule; and drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. OSHA suggests that the employer test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
OSHA further recognized that "incentive programs can be an important tool to promote workplace safety and health." An incentive programs that rewards employees for reporting near-misses or hazards, and encourages involvement in a safety and health management system is "always permissible."
A rate-based incentive program which focuses on reducing the number of reported injuries and illnesses by rewarding employees with a prize of bonus at the end of an injury free month or evaluates managers based on their work unit’s lack of injuries are permissible as long as they are not implemented in a manner that discourages reporting. Employees must, however, feel free to report an injury or illness.
According to OSHA, "a statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, be adequate to ensure that employees actually feel free to report, particularly when the consequence for reporting will be a lost opportunity to receive a substantial reward." An employer should take "positive steps to create a workplace culture that emphasizes safety, not just rates" by implementing (1) an incentive program that rewards employees for identifying unsafe conditions in the workplace; (2) a training program for all employee to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy; and (3) a mechanism for accurately evaluating employees' willingness to report injuries and illnesses."
Contact one of our employment law attorneys at Critchfield, Critchfield & Johnston, Ltd. If you have questions about OSHA compliance and workplace safety or your current drug testing or incentive program.