OSHA Clarifies Workplace Safety Incentive Programs and Post-Incident Drug Testing

Filed in Labor, Safety and Health by on October 16, 2018 0 Comments

On Oct. 11, the Occupational Safety and Health Administration (OSHA) issued a memorandum clarifying how the prohibition against employee retaliation for reporting work-related injuries or illnesses applies to certain safety incentive programs and post-incident drug testing policies.

The prohibition was included in OSHA’s final rule, “Improve Tracking of Workplace Injuries and Illnesses,” issued on May 12, 2016. In the preamble to that final rule, OSHA suggested that certain safety incentive programs could discourage employees from reporting injuries and illnesses (e.g., rewarding a team of employees a bonus if no one from the team is injured over some period of time) and would be prohibited by the rule.

OSHA also suggested that certain post-incident drug testing programs might discourage employees from reporting injuries and illnesses and would be prohibited where the employer did not have a reasonable basis for concluding that drug or alcohol use was a likely contributor to the incident.

Stakeholders, including NAHB, objected to the prohibition in the rule and the preamble language.  Many employers have successfully implemented safety incentive programs and post-incident drug testing programs and found them to improve workplace safety and health.

After issuing the rule, OSHA attempted to clarify the impact of it on safety incentive programs and post-incident drug testing programs in a series of guidance documents.  These guidance documents, while providing some further clarity, did not address the underlying concerns of NAHB and other employers.

In the Oct. 11 memorandum, OSHA goes further in permitting various programs that it had suggested previously would not be allowable.  With respect to safety incentive programs, OSHA indicates in the memorandum that rate-based incentive programs are permissible under the regulation, provided the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

OSHA states that most instances of drug testing are permissible, including the following:

  • 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.

In the memorandum, OSHA also states that any other OSHA interpretive documents that could be considered inconsistent with this most recent interpretation are superseded by the memorandum.  It is not clear from the memorandum, however, if this includes the preamble language to the rule that initially suggested the programs were prohibited.

Brad Hammock, an attorney with the law firm of Littler Mendelson, P.C. in Washington, D.C., said, “While the memorandum does not address all of the concerns raised by employers with the initial rulemaking, it is certainly a step in the right direction to allow employers to continue to use certain programs that have been shown to be effective at improving safety.”

NAHB encourages members to re-examine their safety incentive programs and post-incident drug testing programs in light of the memorandum. NAHB will continue to monitor developments in this area and will apprise members should OSHA’s policy direction change.

For any questions on the memorandum or jobsite safety, contact Rob Matuga at 202-266-8507.

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