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For over two years, employers have faced confusion about whether their safety incentive programs and post-incident drug testing policies run afoul of the Occupational Safety and Health Administration’s (OSHA) anti-retaliation regulation. On October 11, 2018, OSHA issued interpretative guidance attempting to provide employers with greater clarity, but the impact of the interpretative guidance remains to be seen.

The Anti-Retaliation Provision, Safety Incentive Programs and Post-Incident Testing

In May 2016, OSHA revised its record-keeping regulation so as to prohibit employers from retaliating against employees for reporting a work-related injury or illness (the “anti-retaliation provision”). In the preamble to the final rule, OSHA appeared to suggest that some safety incentive programs and post-incident drug testing policies were problematic because they may deter employees from reporting.

In subsequent guidance, OSHA attempted to clarify that the new rule did not outright prohibit safety incentive programs and post-incident drug testing. However, OSHA did not address whether rate-based incentive programs popular with some employers, which reward employees with a prize or bonus at the end of an injury-free month or quarter or evaluates managers based on their work unit’s lack of injuries, were permissible. Likewise, OSHA adopted a vague standard for determining when post-incident testing is allowed, explaining that an employer must have “an objectively reasonable basis for testing.” As a result, many employers have been left wondering where to draw the line.

The New Guidance

Prompted by that confusion, the new OSHA guidance clarifies that the anti-retaliation provision “does not prohibit workplace safety incentive programs or post-incident drug testing.” Going a step further, it makes clear that action taken under an incentive program or post-incident testing policy only violates the anti-retaliation provision “if the employer took the action to penalize the employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

And to eliminate any confusion about the interplay between the new and old guidance, OSHA expressly states that the new guidance supersedes any prior guidance that could be construed as inconsistent with its current interpretative position.

OSHA offers a few important insights about safety-incentive programs. Of particular note, OSHA highlighted that rate-based incentive programs are lawful as long as the employer takes “adequate precautions” to make sure employees feel free to report an injury or illness.

A statement saying that employees are encouraged to report injuries and will not face retaliation for doing so is, by itself, may not be a sufficient precautionary measure. But, when coupled with other precautionary measures – such as a training program to articulate reporting rights and responsibilities and the employer’s anti-retaliation policy or an incentive program rewarding employees for identifying unsafe conditions – the employer’s rate-based incentive program is more likely to pass muster.

With respect to post-incident testing, OSHA clarified 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.

OSHA also instructed that testing “to evaluate the root cause of a workplace incident that harmed or could have harmed employees” is permissible, as long as the employer tests all employees whose conduct could have contributed to the incident and not just the employees who may have reported injuries.

Practical Impact

Although the new guidance is a step in the right direction for employers, it does not significantly depart from OSHA’s prior statements on these issues. Even under the new guidance, for example, an employer cannot deem an employee ineligible for a prize or bonus just for having reported a work-related injury during a specific period of time without taking the precautions outlined above.

As for post-incident testing, blanket policies that require testing anytime a workplace incident is reported will still draw OSHA’s attention (except where such testing is required by law or to obtain discounted workers’ compensation rates). That means that an employer cannot test an employer whose injury could not possibly be related to drug use – say, an employee who reported a repetitive strain injury.

That said, the new guidance does give employers more leeway by clarifying that “root cause” testing is allowed. Presumably, OSHA is giving its blessing to reasonably tailored testing policies designed to determine whether an employee involved in an incident was under the influence of drugs as long as the policy is consistently applied to all employees whose conduct could have contributed to the incident are tested. And, perhaps more importantly, by rescinding its prior guidance, OSHA makes clear that employers need not determine whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an incident before testing, as was required under the prior guidance.

More changes may soon be on the way. Two lawsuits challenging OSHA’s authority to adopt the anti-retaliation provision are currently pending. In response, OSHA has advised the courts that it intends to revise the regulation, and both cases have been stayed pending new rulemaking.

To date, though, OSHA has not issued new proposed rules. So the bottom line for employers is that they still need to remain vigilant about how they draft and implement safety incentive programs and drug testing policies.