OSHA has issued a memo that it hopes will clear up some confusion over whether certain drug testing and safety incentive programs aren’t permitted under its 2016 recordkeeping regulation.
The agency says that 29 CFR 1904.35(b)(1)(iv) “does not prohibit workplace safety incentive programs or post-incident drug testing … Action taken under a safety incentive program or post-incident drug testing policy would only violate [the regulation] 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.”
For incentive programs, the biggest questions surrounded those that are rate-based – they focus on reducing the number of reported injuries and illnesses. This is the type of safety incentive program that rewards employees with a prize or bonus at the end of an injury-free period or evaluates managers based on their workers’ lack of injuries.
OSHA says rate-based incentive programs are OK if they aren’t implemented in a way that discourages injury reporting. OSHA wouldn’t cite an employer as long as the company has implemented adequate precautions to ensure that employees feel it’s OK to report an injury or illness.
What would employers have to do to show that? Particularly if the reward is substantial, a statement that employees are encouraged to report injuries and won’t face retaliation may not, by itself, be enough. OSHA says employers have to take steps to create a workplace culture that emphasizes safety, not just injury rates.
Some examples of actions employers can take:
- Include an incentive program that rewards employees for identifying unsafe conditions or suggesting safety improvements
- Conduct training for all employees to reinforce reporting rights and responsibilities and emphasizes a non-retaliation policy, and
- Develop a mechanism for accurately evaluating employees’ willingness to report injuries.
OSHA says most kinds of workplace drug testing are allowed under the recordkeeping reg. Examples of permissible drug testing include:
- random drug testing
- testing unrelated to the reporting of a work-related injury
- testing under a state workers’ compensation law
- testing under a federal law, such as a U.S. Department of Transportation rule, and
- drug testing to evaluate the root cause of a workplace incident as long as the employer tests all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
OSHA says this memo supersedes any previous memos or guidance on the topic.
What should you do?
According to employment law firm Fisher Phillips, the key “is to treat all employees in a consistent manner and ensure that employees feel free to report an injury or illness.” Also, post-incident drug testing should be limited to when employee drug use is likely to have contributed to the incident.
Fisher Phillips also advises employers to remember:
- OSHA still could pursue retaliation charges if there is some strong indication the employer took action to discourage injury reporting, and
- all this could change after the next presidential election.
And as always, actions speak louder than words. You need to show employees it’s OK to report injuries without fearing retaliation. One way to do that: Tell a story at a safety meeting about when someone reported an injury and how that didn’t result in unfair discipline or retaliation. Better yet: Have an employee tell their own story.