By Mark A. Lies, II, Brent I. Clark, Adam R. Young, and Craig B. Simonsen
OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing; “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv).”
In a previous newsletter we wrote about OSHA’s 2016 retaliation regulation and associated guidance, which had explained examples of post-accident drug-testing and safety incentive as instances of unlawful retaliation. OSHA’s 2016 retaliation rule left employers uncertain about what programs were permissible and whether they would face citations for longstanding safety programs aimed at encouraging safe behaviors and reducing injury rates.
1. OSHA’s Revised Perspective is Apparent in the New Standard Interpretation
OSHA’s new Standard Interpretation intends to “clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.” The Interpretation explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.” Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a workrelated injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.
2. OSHA Will Permit Consistent Post-Incident Drug Testing Policies
For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents.
The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” 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.”
Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and postincident (also “post-accident”) drug-testing programs. Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident. For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested. OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to workers’ compensation retaliation tort claims
3. OSHA Permits Safety Incentive Programs
The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs. With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.” The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month. OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party. The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries. However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting. According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient. Employers need to undertake their choice of additional “adequate precautions,” 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”; or
- “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”
The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace. A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires. The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses. Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.
More Information About Post-Incident Drug Testing
For related information on drug testing requirements, we had blogged on the recent Department of Transportation (DOT) final rule amending its drug testing program for DOT-regulated employers.
For more information on this or any related topic, please contact the authors.