The Occupational Safety and Health Administration (“OSHA”) published its Final Rule on May 12, 2016 regarding safety incentive programs and post-incident drug testing. However, recently, OSHA published a clarification of its Final Rule on these two topics. OSHA’s main purpose in publishing this clarification memorandum is to ensure that employers know that OSHA does not outright prohibit incentive programs and/or post-accident drug testing.
Regarding incentive programs, positive action programs are always permissible. These types of programs include rewarding employees for reporting hazards, near misses, or accidents, or suggesting other ways to improve various aspects of an employer’s safety and health program.
Rate-based incentive programs are permissible but should be instituted with caution. Such programs, according to OSHA, cannot discourage reporting of injuries or illnesses. The employer must implement adequate precautions to ensure that employees understand they are free to report injuries and illnesses. A simple “no retaliation” statement for reporting injuries and illnesses is insufficient. Instead, OSHA recommends employee training or an employer mechanism to evaluate and ensure employees’ willingness to report injuries and illnesses.
A drug testing program that includes pre-employment, random, and Department of Transportation or other federally prescribed testing is acceptable. Testing under state workers’ compensation laws is also permissible. In addition, drug testing to evaluate the root cause of a work-related accident that harmed or could have harmed employees, that is unrelated specifically to a work-related injury, is permissible. In these situations, OSHA recommends that the employer test all employees whose conduct could have or may have contributed to the incident – not just the employees that were injured in the incident. OSHA’s clarification memorandum can be found here.