Excerpted from a Lexology blog by Stinson Leonard Street LLP

On October 11, 2018, the Occupational Safety and Health Administration (OSHA) issued a memorandum entitled Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv). The memorandum clarifies an important point: OSHA does not prohibit the use of either safety incentive programs or post-incident drug testing policies. However, depending on the facts, such programs could discourage employees from reporting workplace injuries or illnesses, and thus, must be implemented and applied with care.

OSHA’s May 12, 2016 Final Rule
On May 12, 2016, OSHA issued a final rule that contained – among other recordkeeping and reporting requirements – a clearly-stated prohibition on retaliating against employees for reporting work-related injuries or illnesses. In the preamble to the final rule, OSHA addressed comments regarding how the anti-retaliation provisions could apply to actions taken under an employer’s safety incentive program or post-incident drug testing policies. These comments included specific mention of scenarios where post-incident drug testing or a safety incentive program could be seen as retaliatory and/or could deter reporting.

October 11, 2018 Clarification of the Final Rule
Following its issuance, it was unclear for many employers whether and to what extent the final rule prohibited post-incident drug testing and/or safety incentive programs. The October 11, 2018 memorandum clarifies OSHA’s position and provides, unequivocally, that the final rule (which amended 29 C.F.R. §1904.35) “does not prohibit workplace safety incentive programs or post-incident drug testing.” Accordingly, employers should not be discouraged from implementing and using properly administered safety incentive programs and post-incident drug testing policies to promote workplace safety. OSHA does offer some examples, however, of how to craft and implement such policies so that they do not have a negative impact on injury reporting.

Safety Incentive Programs
Incentive programs that encourage employees to identify workplace hazards or to participate in safety management are “always permissible” under 1904.35(b)(1)(iv). Such programs may include the following practices:
• Rewarding workers for identifying unsafe conditions in the workplace, such as near-misses or hazards
• Encouraging involvement in the employer’s safety and health management system

However, “rate-based” incentive programs – which reward employees with a prize or a bonus at the end of an injury-free month or evaluate managers based on their work unit’s lack of injuries – present the opportunity for more scrutiny. OSHA’s position is that an employer may not take a negative action against an employee under a rate-based program (such as withholding a prize or bonus because of a reported injury) unless the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness without negative consequences. Accordingly, employers using rate-based programs should take positive steps to create a workplace culture that emphasizes safety and not just rates. Examples of practices which may promote this type of culture include:
• An incentive program that rewards employees for identifying unsafe conditions in the workplace
• A training program for all employees that reinforces reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy
• A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses

Regardless of whether an employer uses any of the above practices, all employers should implement a policy statement that employees are encouraged to report and will not face retaliation for reporting. Such a statement, however, is not sufficient in and of itself to ensure that employees actually feel free to report, especially when the consequence for not reporting may be a lost opportunity to receive a substantial reward.

Workplace Drug Testing
Drug testing policies can be an important part of an employer’s workplace safety program. The memorandum reiterates that post-incident drug testing should be done for legitimate reasons, and not in any way that could be seen as penalizing an employee for reporting a work-related injury. To that end, OSHA offers the following examples of drug testing that is permissible:
• 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 U.S. Department of Transportation rule
• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees

With respect to the last bullet point, above, OSHA makes specific note that if the employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

While OSHA’s memorandum provides some clarity as to these issues, employers should take care when implementing any program that could deter employees from reporting workplace injuries.