On October 11, 2018, the Occupational Safety and Health Administration (“OSHA”) issued a Standard Interpretation Memorandum clarifying its position that workplace safety incentive programs and post-incident drug testing are permissible.  This follows the rule published in 2016, which created considerable confusion regarding these programs.

The 2016 Rule

In May 2016, OSHA published a final rule adding a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses.  OSHA warned that any safety-incentive program that deterred or discouraged reporting was not reasonable.  Thus, any program that rewarded non-injured employees could be unlawful.

OSHA further stated that the rule prohibited employers from using drug testing or the threat of testing as a form of retaliation against employees who report injuries or illnesses.  Thus, blanket post-incident drug-testing of all employees experiencing a workplace injury or illness could be deemed as retaliatory.  Rather, employers could only require post-incident drug testing where there existed a “reasonable possibility” that drug use was a contributing factor to the injury or illness.

Following the publication of the 2016 Rule, confusion arose among employers unsure about the permissible scope of safety-incentive programs and post-incident drug testing.

OSHA’s New Standard Interpretation

OSHA’s October 11 Standard Interpretation Memorandum clarifies that the 2016 Rule does not prohibit safety-incentive programs or post-incident drug testing.

• Incentive Programs: Recognizing that incentive programs “can be an important tool to promote workplace safety and health,” OSHA’s October 11 Memorandum states that an action taken under such a program only violates the rule if the employer undertook 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.  OSHA provided the following examples of permissible programs:
  • An incentive program that rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system.
  • A rate-based incentive program that 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 is permissible as long as the program is not implemented in a manner that discourages reporting.   OSHA suggests that an employer could avoid inadvertent deterrent effects of a rate-based incentive program by implementing:
    • 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;
    • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
• Drug Testing: The October 11 Memorandum provides 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
  • 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.

Recommended Employer Actions

Employers should review their safety-incentive programs and post-incident drug testing procedures for compliance with OSHA’s October 11 Memorandum, as it supersedes any prior, inconsistent guidance on the 2016 Rule.