Clear as Mud—OSHA Attempts Clarification on Retaliation, Drug Testing, and Workplace Safety Incentive Programs

In May 2016, the Occupational Safety and Health Administration published a rule which prohibited employers from retaliating against employees for reporting workplace injuries.  29 C.F.R. § 1904.35(b)(1)(iv). This rule caused some confusion in the industry, particularly when it came to incentive-based workplace safety programs as well as drug testing. Recent clarification from OSHA should hopefully provide employers with clarification on the kinds of programs permitted under OSHA’s rules.

INCENTIVE BASED SAFETY PROGRAMS

Many companies have programs in place which reward employees for keeping the workplace injury-free. Ostensibly, the intent of these programs is to avoid accidents and reward employees for safety. However, sometimes these programs simply incentivize employees to avoid reporting of accidents to remain eligible for the award. OSHA gave the example of an employer holding a raffle for a $500 gift card for every injury-free month. Not holding the raffle in a month in which an employee suffers an injury and then reports it would likely be in violation of OSHA’s retaliation rules.

This rule led many employers to believe OSHA was banning all incentive-based safety programs, which OSHA has recently asserted to not be the case. In October of this year, OSHA released a memorandum intending to clarify its position. This memo makes clear OSHA does not intend to prohibit workplace safety incentive programs as a rule—but does repeat that any program which penalizes employees for reporting an injury would violate the rules. Programs which incentivize employees to report near-misses or potential dangers would likely still be permissible.

OSHA goes further to state that employers can avoid inadvertent deterrent effects of an incentive-based program by “taking positive steps to create a workplace culture that emphasizes safety, not just rates.” OSHA lists three examples of ways employers can institute such a culture:

• 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

In addition to concerns regarding safety programs, the rule issued by OSHA in 2016 caused a great deal of confusion regarding when employers could perform drug testing. OSHA asserted that a policy which required drug-testing of any employee who reports an accident is likely retaliatory and in violation of the rule. OSHA asserted it was not prohibiting all blanket post-accident drug testing, but many employers worried the language was ambiguous and could result in penalties if the drug test is later found to be unwarranted.

The memorandum from October 2018 attempts to clear this up. The memo lists the following as permissible:

• 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.

Employers still need to exercise care when drug testing in the aftermath of an injury. If there are multiple employees involved in an accident, all should be tested rather than just the employee who reported the accident. Testing only the reporting employee would almost surely be considered retaliatory by OSHA.

Employers should take great care when instituting either incentive-based safety programs or drug-testing. While OSHA has attempted to provide clarification on which programs would be permissible under retaliation rules, there is a great deal of risk for employers if they get it wrong. For any questions regarding these rules, contact our Sioux Falls, Sioux City, or Omaha office today!