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The Occupational Safety and Health Administration (OSHA)  released a memorandum earlier this month to clarify the Workplace Safety Incentive Programs and Post-Incident Drug Testing under 29 C.F.R. § 1904.35 (b) (1) (iv). The Department issued a final rule on this directive in 2016, but is releasing its memorandum to further clarify its position on this rule – namely, that it doesn’t prohibit workplace safety incentive programs or post-incident drug testing.

The Department believes that employers, who do implement these programs and/or testing, are promoting a safe and healthy workplace. When there is evidence that an employer is consistent with enforcing legitimate work rules, it demonstrates that they are serious about having safety and health as a top priority. The only circumstance in which taking action under a safety incentive program or a post-incident drug testing policy would violate 29 C.F.R. § 1904.35 (b) (1) (iv) is if the employer penalized an employee for reporting a work-related injury or illness.

In its announcement, OSHA provided a few examples of incentive programs, such as rewards for workers who report near-misses or hazards, or a rate-based incentive program. Having rewards for employees can encourage their involvement in a safe and healthy work place. Rate- based incentives typically reward employees with a prize or bonus at the end of injury-free months or evaluate managers based on their work unit’s lack of injury.  According to OSHA, this type of incentive is permissible as long as it is not used to discourage reporting. If an employer chose to take negative action against an employee under a rate-based incentive program, such as withholding a bonus or reward because of a reported injury, OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer had taken the proper steps to ensure that employees felt free to report an injury or illness.

OSHA explained that an employer can avoid any unintended deterrent effects of a rate-based incentive program by taking positive steps to create a workplace that encourages safety and health, not just rates.

The agency also illustrated how any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements 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;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

OSHA also displayed examples of permissible drug testing under § 1904.35(b)(1)(iv) as the following:

  • 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.

OSHA’s memorandum clarifies its position on workplace safety incentive programs and testing so that employers can address those safety issues without fear of administrative actions being taken against them. The memorandum identifies permissible drug testing and accident investigation processes to assist employers in not running afoul of OSHA’s mandates.

Please click here to read the full memorandum.