Sources: Occupational Safety and Health Administration; CP staff
OSHA Acting Director of Safety Programs Kim Stille has informed regional administrators and state designees that safety incentive programs and post-incident drug testing—contrary to indications in a final rule the agency adopted during the Obama administration’s waning months—do not violate Standard 1904.35, Recording and Reporting Occupational Injuries and Illness, Employee Involvement.
A final rule published in May 2016 amended the standard to include a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The rule and post-promulgation interpretive documents reflected applicability to actions taken under workplace safety incentive programs and post-incident drug testing policies.
“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,” Stille notes in an early-October memo to field management. “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. Action taken under a safety incentive program or post-incident drug testing policy would only violate [1904.35] 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.”
“Incentive programs can be an important tool to promote workplace safety and health,” she affirms. “One type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible under 1904.35. Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses [and] typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible under 1904.35 as long as they are not implemented in a manner that discourages reporting.”
Most instances of workplace drug testing are likewise permissible under 1904.35, Stille observes, including those tests that are random; unrelated to the reporting of a work-related injury or illness; conducted under a state workers’ compensation law or federal law such as the one behind the U.S. Department of Transportation rule covering commercial vehicle drivers; and, aimed at evaluating the root cause of a workplace incident that harmed or could have harmed employees.