On October 11, 2018, OSHA issued a memorandum stating that “The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.” Recall that in May 2016, under the Obama administration, OSHA published a final rule that, among other things, prohibited “employers from retaliating against employees for reporting work-related injuries or illnesses” and restricted post-accident drug testing. That former non-employer friendly interpretive guidance is out. “To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” OSHA’s current position is much more employer friendly. In fact, OSHA states that it “believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.” OSHA will allow such programs where there is “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.” Violations will be found, however, if “Action taken under a safety incentive program or post-incident drug testing policy … 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.”
Specifically, with regard to safety incentive programs, the clarifying memo provides, “One 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 is always permissible under § 1904.35(b)(1)(iv). Another 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 month or evaluates managers based on their work unit’s lack of injuries. 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.” OSHA cautions: “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 notes that employers should take additional steps to avoid any inadvertent deterrent effect of a rate-based incentive program by implementing additional protective measures such as:
For post-accident drug testing, OSHA now advises, that examples of permissible drug testing include:
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