OSHA publishes clarification and a change of direction on its position regarding workplace safety incentive programs and post-incident drug testing
In an October 11, 2018 memorandum to all area administrators and state OSHA directors, Kim Stille Acting Director of Enforcement Programs, clarifies how the current administration is viewing workplace safety incentive programs and post-incident drug testing. The memo also states it supersedes previous documents on this subject. This memo from OSHA provides a more inclusive and less aggressive tone in outlining what OSHA views as acceptable workplace safety incentive programs and supports the practice of post-incident drug testing.
You may recall during the Obama Administration, OSHA leadership took a hard stance on any company safety incentive program that they regarded as a disincentive to injury reporting. In our August 2010 article “Safety Incentives on the Chopping Block” we discussed that OSHA made employer safety incentive programs part of their national emphasis program. We provided guidance on the type of safety incentive programs OSHA found to be suspect in our July 2013 article “Does Your Safety Incentive Program Pass the OSHA Smell Test”.
On May 12, 2016, the outgoing OSHA administration published a Final Rule that, among other things, amended 29 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. In the preamble to this final rule, as well as other documents, OSHA discussed how it could apply this rule to take action against workplace safety incentive programs and post-incident drug testing policies that OSHA viewed discriminated against employees for suffering an injury. The current OSHA administration has a differing viewpoint and has published this new memorandum to clarify that the Agency does not prohibit workplace safety incentive programs or post-incident drug testing.
OSHA on Workplace Safety Incentive Programs
There are basically two types of workplace safety incentive programs, one proactive in nature and the other reactive in nature. The proactive type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program has always been and continues to be permissible under § 1904.35(b)(1)(iv).
The reactive type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free period of time or evaluates managers based on their work unit’s lack of injuries. Previously this was the type of program that was seen as discriminatory by OSHA. The current administration now states that these rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.
OSHA clarifies that a statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, be adequate to ensure that employees actually feel free to report. Particularly when the consequence for reporting will be a lost opportunity to receive a substantial reward. OSHA explains that an employer could avoid any inadvertent deterrent effects of a reactive rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements proactive 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; or
- a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
OSHA on Workplace Drug Testing
OSHA has stated in the October 11, 2018 memorandum that most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv). Examples of permissible drug testing 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, OSHA states the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
You can read the entire memorandum here.