In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.
On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.”
Under the Trump Administration, OSHA’s new position is that actions related to safety-incentive programs or post-accident drug testing are legitimate when taken to promote workplace health and safety. The anti-retaliation rule is violated only when employers penalize employees for reporting workplace injuries and illnesses.
Under the previous interpretation, OSHA took issue with incentive programs that conditioned rewards on low workplace safety incident rates, claiming that these programs actually deterred accurate reporting of illnesses and injuries. Now, OSHA has revised its position and provides examples of permissible incentive programs.
First, incentive programs rewarding employees for reporting hazards and near-misses encourage employee involvement in a culture of safety. “Positive action” taken in regard to this type of incentive program is always permissible according to OSHA.
The second type of incentive program addressed by OSHA is rate-based— one that rewards employees for an injury-free month or similar reduced rates. The anti-retaliation rule in the past considered these incentive programs improper. Conversely, OSHA now takes the position that these incentive programs are permissible so long as they “are not implemented in a manner that discourages reporting.”
How can you make certain your incentive program does not discourage reporting?
Employers must have “adequate precautions” to ensure employees feel free to report. Alone, a statement encouraging employees to report, assuring that they will not face retaliation, is unlikely to meet this burden. Further, OSHA offers the following as suggestions for employers:
- Create a work culture that supports and emphasizes safety over rates
- Implement incentive programs that reward employees who report unsafe working conditions
- Use training program to reinforce reporting rights and responsibilities
- Implement a mechanism to evaluate employees’ willingness to report
Post-Accident Drug Testing
Under the previous interpretation, OSHA considered automatic post-accident drug testing improper. It required the policy to call for testing only where there was a “reasonable possibility” that drug use contributed to the accident. Recently OSHA changed its position, stating “most instances of workplace drug testing are permissible” under the anti-retaliation rule. These permissible instances of drug testing include:
- Random drug testing
- Testing unrelated to reporting of work-related injuries or illnesses
- Required drug testing under state workers’ compensation laws or federal laws
- Drug testing to investigate the cause of an accident that harmed or could have harmed employees
Specifically regarding post-accident testing, While OSHA states that “all employees whose conduct could have contributed to the incident, not just employees who reported” should be tested.
The new guidance from OSHA is generally good news for employers.
In short, OSHA’s relaxed stance on incentive programs and post-accident drug testing may lead to less scrutinizing of employers. However, employers should not completely ignore the original interpretation, as it provides good tips and may help foster a culture of safety in your workplace. Although rate-based incentive programs are permissible under the current administration, consider pairing a rate-based incentive with one that rewards active behaviors, such as reporting hazards. Though OSHA permits post-accident drug testing, it is a good practice to only test when there is reason to believe the accident involved drugs or alcohol.
Beware: under-reporting could lead to under-recording
Finally, one aspect of the anti-retaliation rule not discussed was a concern for under-recording of injuries and illnesses. As a result, any incentive program encouraging under-reporting could lead to under-recording, resulting in employer liability for inaccurate recordkeeping.