The Occupational Safety and Health Administration (OSHA) issued a memorandum on October 11, 2018 to clarify its position on workplace incentives and post-accident drug testing, stating specifically that “it does not prohibit workplace safety incentive programs or post-incident drug testing.”  This clarification not only eased the restrictive position previously taken by OSHA, it superseded it.

On May 12, 2016, OSHA had published a final rule that prohibited employers from retaliating against employees for reporting work-related injuries or illnesses.   To the dismay of many employers, it found that “automatic” post-accident testing was retaliatory and unreasonable and would result in the underreporting of work-related injuries.

The new memorandum recognizes that an employer could take steps to create a workplace culture that emphasizes safety.  For example, employers could implement:

  • 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.

The memorandum notes that testing to “evaluate the root cause of a workplace incident that harmed or could have harmed employees” is permitted.  It also lists examples of permissible drug testing, which 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 a U.S. Department of Transportation rule.
  • 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.

OSHA also notes that incentive programs can be an important tool to promote workplace safety and health. Those programs could include rewards to workers for reporting near-misses or hazards and a rate-based incentive (rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries).  Finally, the memorandum specifies that “[a]ction taken under a safety incentive program or post-incident drug testing policy would only violate [the law] 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.”

Employers should review company policies to ensure compliance with OSHA announcement.

 

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