New Guidance From OSHA on Post-Incident Drug Testing and Safety Incentive Programs

On October 11, 2018, OSHA issued a memorandum of interpretation clarifying its position on workplace safety incentive programs and post-incident drug testing. Originally, OSHA issued a Final Rule on May 11, 2016 that sought to increase anti-retaliation protections by requiring employers to inform employees of their right to report work-related injuries and illness without fear of adverse employment actions.  The Rule stated that the existing requirement that an employer’s procedure for reporting work-related injury or illness must be (1) reasonably laid out in a manner that does not discourage/deter employees from reporting; and (2) incorporates existing statutory whistleblower protections. Moreover, “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” (Emphasis added.)

Now, OSHA clarified that post-incident drug testing and safety incentive programs are permitted under the existing rules. Generally, action taken under a post-incident drug testing or safety incentive program would only violate the Final Rule if 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. Moreover, evidence that an 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. OSHA’s examples of permitted post-incident 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, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” (Emphasis added.)

Workplace safety incentive programs are always permitted when they positively reward workers for reporting near-misses or hazards, and encourage involvement in a safety and health management system. Rate-based programs focused on reducing the number of reported injuries and illnesses are also permitted as long as they are not implemented in a manner that discourages reporting. Specifically, an employer taking a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, is permitted as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness, 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; and
• a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

Employers are encouraged to have workplace safety incentive programs revised to include the components recommended by OSHA. Although the memorandum provides some clarity on post-incident drug testing, employers still need to ensure that drug testing policies limit post-incident testing to instances where drug use is likely to have contributed to the incident, and where drug testing can verify impairment caused by drug use.