OSHA has recently issued a Standard Interpretation (October 2018) clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing; “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).” OSHA’s 2016 rules had called into question mandatory post-accident drug screenings and safety incentive programs, open the door to new retaliation citations. The Standard Interpretation memo can be found on the OSHA website: https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11
Background - The 2016 Final Rule
In its recent memorandum to its regional administrators and state affiliates, OSHA’s new guidance focuses on two much-criticized aspects of the 2016 final rule. In that rule, OSHA added a provision prohibiting retaliation against employees for reporting work-related injuries or illnesses (29 C.F.R. § 1904.35).
However, in the preamble to that 2016 rule and subsequent guidance, OSHA also explained that it would consider employers to violate the rule when they conduct automatic drug testing of everyone involved in an accident, for example. It argued that doing so would discourage employees from reporting injuries (in order to avoid drug tests). Instead, OSHA said at the time that employers must have an “objectively reasonable basis for testing employees,” namely a “reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” The guidance was not particularly clear, but it strongly suggested that blanket drug-testing rules were assumed to be non-compliant.
Similarly, OSHA’s 2016 final rule and guidance tamped down on safety incentive programs. OSHA argued that if employees are rewarded for low injury rates – whether with extra days off, bonuses, or even company pizza parties – the employees could feel an incentive not to report injuries in order to keep those rates low and win the prizes. Many employers complained that these OSHA policies were getting in the way of effective and important safety programs.
OSHA’s recent 2018 guidance clarifies the rule further and effectively walks back the most extreme aspects of OSHA’s prior positions. Now, OSHA says, “29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.” OSHA now recognizes that employers may have such programs or testing in order to promote workplace safety. The agency has now clarified a bit better what is permissible and what isn’t.
1. OSHA's Revised Perspective is Apparent in the New Standard Interpretation
OSHA’s new Standard Interpretation intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. 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.” The Interpretation explains that “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.”
Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.
2. OSHA Permits Consistent Post-Incident Drug Testing Policies
For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the hours following workplace safety incidents. The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:
- “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 a U.S. Department of Transportation rule”; and
- “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”
For post-incident testing, blanket policies that require testing anytime a workplace incident is reported will still draw OSHA’s attention (except where such testing is required by law or to obtain discounted workers’ compensation rates). That means that an employer cannot test an employer whose injury could not possibly be related to drug use – say, an employee who reported a repetitive strain injury.
That said, the new guidance does give employers more leeway by clarifying that “root cause” testing is allowed. Presumably, OSHA is giving its blessing to reasonably tailored testing policies designed to determine whether an employee involved in an incident was under the influence of drugs as long as the policy is consistently applied to all employees whose conduct could have contributed to the incident are tested. And, perhaps more importantly, by rescinding its prior guidance, OSHA makes clear that employers need not determine whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an incident before testing, as was required under the prior guidance.
Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs. Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.
For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested. OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.
This guidance is the most direct and clear guidance provided to employers regarding OSHA’s position on drug testing policies and safety incentive policies. More importantly, it makes clear that as a general rule such policies are not a violation of OSHA requirements. Further, the memorandum directly states that it supersedes any other agency guidance previously issued which may have interpreted Sections 1904.35(b)(1)(i) and (iv) inconsistent with the agency’s position.
The memorandum also instructs agency officials to consult with OSHA’s Directorate of Enforcement Programs before issuing citations under § 1904.35(b)(1)(iv) relating to safety incentive or drug testing policies.
3. OSHA Permits Safety Incentive Programs
The Standard Interpretation reverses course on the 2016 retaliation regulation’s prohibition of safety programs. With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.” The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month. OSHA’s new position thus permits employers to bring back cash bonuses or the much-maligned monthly pizza party. The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries.
However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting. According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient. Employers need to undertake their choice of additional “adequate precautions,” such as:
- “An incentive program that rewards employees for identifying unsafe conditions in the workplace;”
- “A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;” or
- “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”
The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace. A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding for new hires. The “mechanism for accurately evaluating employees willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses. Accordingly, if employers adopt these low-burden precautionary measures, they may bring back or now adopt safety programs that are popular and effective at reducing workplace injury rates.
OSHA’s new guidance on safety incentive programs says that:
- Evidence that an 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.”
- No violation without intent? Rather than assuming that these programs are improper, OSHA seems to suggest that it will now find violations only with evidence of improper intent. A safety incentive program or drug testing policy “would only violate 29 C.F.R. § 1904.35(b)(1)(iv) 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.”
- Rewards for reporting are OK. Certain programs are always permissible, including those that reward workers for reporting near-misses and hazards and encourage involvement in a safety and health management system.
- Incentives can be based on injury rates with the right provisions. Rate-based programs that reward employees (or managers) with a prize or bonus for low/no injury rates are permissible as long they “are not implemented in a manner that discourages reporting.” If an employer withholds a prize or bonus because of a reported injury, “OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.” It may not be sufficient to simply make a statement encouraging reporting or prohibiting retaliation. To stay on the right side of the law, OSHA says that employers using a rate-based incentive program may also want to implement:
- Rewards for employees identifying unsafe conditions,
- Training to reinforce reporting rights and responsibilities and non-retaliation policies, and
- “A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”
Points for Employers
- A key takeaway from the memorandum is that most drug-testing programs are permissible, including random and post-accident drug testing. OSHA’s memorandum is welcome news for employers because it is now clear that employers need not analyze whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an accident. Instead, broad post-accident drug and alcohol testing is permitted (subject to applicable laws that may have different requirements) as long as all employees whose conduct could have contributed to the accident are tested.
- Employers with workers in safety-sensitive roles that are concerned about drug use leading to accidents may want to have a blanket post-injury drug-testing policy because it is important to ensure that workers are not under the influence.
- OSHA already has exceptions allowing blanket post-accident testing if it could help the employer obtain discounted workers' compensation rates or is used as part of an investigation to find the root cause of an incident. The new guidance seems to also allow such testing to screen out workers who are under the influence – the key will be consistency in applying the policy for post-accident drug testing across similarly situated employees.
- Best practices for employers are likely to vary depending on state laws regulating workplace drug testing, but in general, employers who want to ensure their drug-testing programs are not a deterrent for employees to report work-related injuries should consider drug testing employees whose behavior may have had an impact on the incident. For example, employers may want to drug test only the forklift driver who runs into another employee, rather than drug testing the employee who was simply a bystander.
Reviewing and Updating Policies - Safety-incentive programs that provide positive rewards to employees who report workplace injuries or illnesses are always lawful. Rate-based safety incentive programs that provide negative consequences for occurrences and/or reports of workplace injuries or illness are lawful only if the programs include adequate protective measures that ensure employees will not be discouraged from reporting illnesses and injuries, including:
- positive rewards for identifying unsafe conditions in the workplace,
- training that reinforces reporting rights and responsibility and a company’s anti-retaliation policy; and
- an accurate way to evaluate employee willingness to report injuries and illnesses.
For post-accident/incident drug testing policies and protocols, most forms of workplace drug/alcohol testing will survive OSHA scrutiny in retaliation-based injury reporting audits and complaint proceedings. Post-accident testing programs in particular—which OSHA acknowledges promote safety—need only specify that all employees whose acts may have contributed to a workplace accident will be subject to testing. An employer that conducts such tests should include any employees who may have caused or contributed to an accident, and not only those who report injuries. Broader testing without a “contributed to” standard continues to be allowed when no workplace injury occurs, such as situations in which an accident leads to property damage but is subject to state law and any regulated testing requirements.
Bottom Line - OSHA’s new Standard Interpretation Memorandum recognizes the value of safety incentive programs and post-incident drug and alcohol testing applied in a non-retaliatory manner. This guidance supersedes all prior, inconsistent interpretative guidance regarding the 2016 Rule. Employers should review their safety-incentive programs and post-incident drug testing procedures for compliance with OSHA’s new policy.
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.
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