Occupational Safety and Health Administration (OSHA) released a memorandum for regional administrators and state designees on October 11, 2018, clarifying the department’s position regarding workplace safety incentive programs or post-incident drug testing.

In May 2016, OSHA published a final rule amending 29 C.F.R § 1904.35, adding clarification that prohibited employers from going after employees reporting work-related injuries or illnesses—a rule that could apply to actions taken under workplace safety incentive programs and post-incident drug testing policies. The new memorandum, officials say, seeks to clarify how actions taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv), “… 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.”

According to the memo, OSHA officials believe many employers who conduct safety incentive programs and post-incident drug testing do so with the intention of promoting workplace health and safety. If an employer can produce evidence that there are consistent legitimate work rules, this would show that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.

OSHA suggests that incentive programs can be helpful when promoting workplace safety and health, including such things as:

  • rewarding workers for reporting near-misses or hazards, and encouraging involvement in a safety and health management system; and
  • rate-based systems and focuses on reducing the number of reported injuries and illnesses, which reward employees with prizes or bonuses at the end of an injury-free month or evaluate managers based on their work units’ lack of injuries.

However, a statement that employees are encouraged to report and will not face retaliation for reporting may not be adequate to ensure that employees actually feel free to do so in the workplace. OSHA officials say this is especially true when the consequence will be a lost opportunity to receive a substantial reward. According to the memorandum, this can be avoided by promoting a work culture of safety, and not just rewards. According to information published by the administration, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

In addition, the administration says that most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv), including:

  • 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 a 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. (If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.)

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