Incentive programs, post-incident drug testing not prohibited under electronic recordkeeping rule, OSHA says

Washington — Post-incident drug testing and safety incentive programs are not prohibited under the anti-retaliation provisions in OSHA’s electronic recordkeeping rule, the agency has clarified in an Oct. 11 memorandum sent to regional administrators and state designees.

As part of its Improve Tracking of Workplace Injuries and Illnesses final rule issued in May 2016, OSHA states in 29 CFR 1904.35 (b)(1)(iv) that employers “must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

In an October 2016 memo, OSHA explains that drug testing employees who report injuries or illnesses is prohibited unless an employer has an “objectively reasonable basis.” In addition, the agency will “only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred,” and will “consider this factor for tests that measure alcohol use” but not tests for drug use.

According to the 2016 regulation’s preamble, “evidence in the rulemaking record shows that blanket post-incident drug testing policies deter proper reporting” and indicates employers might run afoul of the rule’s anti-retaliation provisions with such actions.

The most recent memo outlines five examples of acceptable drug testing, including the evaluation of “the root cause of a workplace incident that harmed or could have harmed employees.” Under this circumstance, employers who choose to test for drugs “should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

The other examples include random drug testing, testing unrelated to reporting an occupational injury or illness, testing under state workers’ compensation laws, and testing under other federal law such as a Department of Transportation rule.

Incentives

The 2016 final rule cautions that incentive programs “might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, if the programs are not structured carefully, they have the potential to discourage reporting.”

Incentive programs that seek reductions in the number of injuries and illnesses reported, or rate-based programs, are permissible if they do not discourage reporting, OSHA states in the Oct. 11 memo, adding that employers who withhold a prize because of an injury report are not in violation “as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”

Further, “an employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates.” Examples provided in the memo include:

• Incentive programs rewarding employees for identifying unsafe workplace conditions.
• Employee training programs that reinforce reporting rights and responsibilities and emphasize an organization’s anti-retaliation policy.
• Taking steps to accurately evaluate workers’ willingness to report injuries and illnesses.

In a post on his “Confined Space” blog, former OSHA Deputy Assistant Secretary Jordan Barab questions how that would work, providing a possible scenario.

“A worker suffers a serious cut on his hand while working on an unguarded machine the day before the lottery for a new riding mower ends,” Barab wrote. “Fearing that his co-workers will hate him for causing them to lose a chance for the prize, he sticks his bloody hand in his pocket and heads to the local urgent care to have it sewed up, telling them that he did it while working on his car.

“Even if OSHA finds out that the incentive program caused the worker to hide the injury, the employer is now home free if there was also a program that rewarded workers for attending safety meetings that identify unsafe conditions in the workplace.”