Under the previous administration OSHA produced a rule that left many of us scratching our heads about the implementation of safety incentive programs using prizes as motivators and how/when to conduct post-accident drug testing. Last week OSHA clarified that 1904.35(b1)(iv) does not prohibit safety incentive programs or post-incident drug testing. By issuing the latest memorandum they have superseded all previous guidance.
Evidence that the employer consistently enforces legitimate work rules (whether or not an injury 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 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 rather than for the legitimate purpose of promoting safety.
OSHA now recognizes that incentive programs can be an important tool to promote safety. Employers that are earnest in their efforts to create a workplace culture that emphasizes safety, not just injury rates, should also include the following elements to ensure that employees actually feel free to report incidents without retaliation:
- 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;
- A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
In addition, OSHA now says that most instances of drug testing are permissible. Examples include:
- 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.
In my opinion, this shift provides clarity for our cooperatives when dealing with safety incentive programs and post-accident drug testing. This does not mean that you have to change current policies, but instead allows you to consider rewarding employees for maintaining injury free records. However, as many of the cooperatives have noted, instituting programs that do not penalize employees (even reward them) for reporting injuries and near-misses provides for more open conversation about incidents that occur in the workplace. This has helped to change the culture at many cooperatives.
If you have any questions about this recent change in position or would like to discuss safety incentive programs that really work to create a safe culture, please feel free to contact me.
I have attached the OSHA memorandum below in its entirety.