OSHA Clarifies Position on Safety Incentive Programs, Post-Accident Drug Testing
Author: Robert S. Teachout, XpertHR Legal Editor
October 24, 2018
The Occupational Safety and Health Administration (OSHA) has issued a memorandum clarifying that anti-retaliation provisions of a workplace injury and illness reporting rule do not prohibit the use of either safety incentive programs or post-incident drug testing policies. Instead, employers must implement such programs with caution to ensure the programs do not discourage employees from reporting workplace injuries or illnesses.
The clarification follows the Obama administration's implementation in 2016 of a workplace injury and illness reporting and recordkeeping rule that included a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. OSHA emphasized at the time that the rule did not ban appropriate safety incentive or drug-testing programs.
However, the rule also permits OSHA to issue citations for retaliatory actions against workers if the programs could discourage workers from exercising their right to report workplace injuries and illnesses. The rule and following guidance, which included examples of instances of unlawful retaliation, left employers uncertain about which post-incident drug-testing and safety incentive programs were permissible.
The memo explained that an employer's action taken under a safety incentive program or post-incident drug testing policy would only violate the rule if the employer acted to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.
For example, the memo explained that an employer could avoid the inadvertent deterrent effects of a program that rewards employees for remaining injury-free for a certain period of time by incorporating positive steps to create a workplace culture that emphasizes safety, 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 emphasize the employer's non-retaliation policy; and
- A mechanism for accurately evaluating employees' willingness to report injuries and illnesses.
In the case of drug-testing policies, the memo advises that if the employer chooses to use drug testing to investigate an incident, all employees whose conduct could have contributed to the incident should be tested, not just the employees who reported injuries.