The Occupational Safety and Health Administration (OSHA) has announced that it is softening a hardline approach adopted during the Obama Administration restricting the use of post-accident drug testing and employee safety incentive programs.
OSHA sent a memo to its regional administrators on Oct. 11 that supplies a more permissive interpretation of its regulation prohibiting employers from discharging or discriminating against employees for reporting a work-related injury or illness. The Obama-era agency had declared that employers could not use “drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”
Instead, employers were limited to using drug testing only when there was a “reasonable possibility” that drugs or alcohol contributed to the accident or injury. The earlier OSHA decision had assumed that regardless of employers’ intent, the threat of a drug test would intimidate employees into not reporting accidents and injuries.
In its Oct. 11 memo, however, the new OSHA leadership under the Trump Administration declared that the existing rule will not be interpreted as prohibiting the institution of workplace safety incentive programs or the implementation of post-incident drug testing.
“The department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health,” OSHA stated. “In addition, evidence that the 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, not just the appearance of reducing rates.”
Actions that are taken under a safety incentive program or in following post-incident drug testing policies 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, OSHA noted.
OSHA further declared that as far as it was concerned, “most instances of workplace drug testing are permissible.” Examples given in the memo 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, OSHA stressed.
“OSHA’s memorandum is welcome news for employers because it is now clear that employers need not analyze whether there was a ‘reasonable possibility’ that drugs or alcohol could have contributed to an accident,” says Kathryn J. Russo, an attorney with the Jackson Lewis law firm.
“Instead, broad post-accident drug and alcohol testing is permitted (subject to applicable laws that may have different requirements), as long as all employees whose conduct could have contributed to the accident are tested,” she added. OSHA also made the point that to the extent any other interpretive documents could be construed as inconsistent with the new position, the memo supersedes them.
Rewards for Not Reporting?
Certain kinds of safety reward programs also are suspect in the eyes of some people in safety enforcement because they are believed to create disincentives that can discourage employees from reporting accidents and injuries. In 2016, OSHA used this argument to prohibit employee safety incentive policies premised on OSHA-recordable cases.
OSHA acknowledged at the time that such policies could be well-intended efforts by employers to encourage employees to work safely, but stated that there were better ways to accomplish that goal. Rather than tying safety incentives to recordable cases, at that time OSHA suggested rewarding employees who participate in safety-related activities, such as identifying hazards or participating in accident investigations.
In the Oct. 11 memo, OSHA also acknowledges such policies may be motivated by a good faith intent to promote safety and health, but this time the agency sees no problem in general with rewarding employees for their participation in these types of proactive safety efforts, and they no longer will be seen as being in violation of its regulations.
OSHA also now says that a safety incentive policy premised on OSHA recordables is not by itself prohibited. Instead, such policies will be considered violations only if they penalize employees for reporting work-related injuries or illnesses, or are implemented in a way that discourages reporting.
The memo does not directly address the value of possible rewards for achieving an accident-free period of time or meeting a recordable case target, such as offering a television as a reward instead of a pizza party, notes the law firm of Constangy Brooks Smith & Prophete. Instead, it says employers can use a safety incentive policy premised on OSHA recordables as long as the employer “has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”
These “adequate precautions” include a statement encouraging employees to report such cases, training employees about the importance of reporting such cases, offering other incentives that reward employees for identifying unsafe conditions or other proactive efforts, and evaluating or monitoring employees’ willingness to report injuries and illnesses.
Also, OSHA also says that in assessing an employer’s use of safety incentive programs, the agency will look at whether “the consequence for reporting will be a lost opportunity to receive a substantial reward.” However, OSHA does not define what it considers to be a “substantial” reward.