OSHA announced this month that it is clarifying, and effectively rolling back, portions of the injury and illness rule guidance it issued in 2016. The decision clarifies and walks back guidance that potentially penalized employers for certain drug testing policies and safety incentive programs.
In an October 11, 2018 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 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.
Likewise, 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.
This month’s 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.
New guidance on safety incentive programs
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.”
New guidance on drug testing
In its latest memo, OSHA says that “most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv).” The following are its examples of “permissible” drug testing:
- 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.
- “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.”
OSHA says that its new guidance supersedes anything to the contrary it may have said in the past.
Does your policy comply?
Some employers may be annoyed that they made changes to policies in order to comply with the 2016 directives only to see OSHA walk back the guidance. Others will be relieved and eager to adjust policies to take account of new flexibility.
The Husch Blackwell safety and health law team often helps clients review their safety policies, including drug testing and incentive programs. The goal is to ensure you comply while maximizing your company and safety objectives. If you have policies you’d like to review, please contact Avi Meyerstein or your Husch attorney.