OSHA published its electronic recordkeeping standard in 2016. In addition to requiring the electronic submission of OSHA log information for many employers, it prohibited employers from engaging in specific, discriminatory practices.
These included a prohibition of blanket, post-injury drug and alcohol testing, and certain types of safety incentive programs. Many employers objected to the agency’s involvement in these programs, particularly the prohibition of blanket, post-injury testing. This created complexity for many employers who either avoided post-injury drug testing altogether or who converted to a much more complex reasonable suspicion testing program.
In a memorandum dated October 11, 2018, OSHA is walking back its position on post-injury drug testing and safety incentive programs.
https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11
In the memorandum, OSHA states, “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. 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 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took 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.”
According to the memorandum, as long as an employer does not penalize an employee for reporting a work-related injury, post-injury drug & alcohol testing and some safety incentive programs are now permissible. Further, the agency is requiring its Regional Administrators to consult with the Director of Enforcement Programs before issuing citations for violations involving post-injury drug testing and safety incentive programs. This will help limit citations involving post-injury testing and safety incentive programs to the most severe infractions because of the approvals required at the top of the food chain.
Post-Injury Drug & Alcohol Testing
Post-injury drug testing programs are essentially a form of reasonable suspicion testing. Most employers test employees if the injury is serious enough to be evaluated by a medical professional. To avoid the appearance of discrimination, employers must test ALL employees whose injuries will be similarly assessed. In the memorandum, the agency also instructs employers to test ALL employees whose conduct could have contributed to an incident or injury, not just the injured employee.
Safety Incentive Programs
Concerning safety incentive programs, the agency clarifies its position that incentive programs should not provide a substantial reward to employees for avoiding work-related injuries. A substantial reward may motivate an employee from reporting the occurrence of a work-related injury.
The agency is correct in discouraging safety incentive programs that provide a reward for the absence of injuries because such programs often reward luck. Incentive programs with rewards for the absence of injuries are based on lagging indicators. Effective incentive programs identify, measure, and reward the leading indicators responsible for driving the success of a safety program. Leading indicator incentive programs can include incentives awarded for work areas free of unsafe conditions and behaviors to incentive programs for supervisors who complete important tasks like employee training, work area audits of their work area, and reporting hazards before an accident occurs.
The most effective “incentive” to discourage the unsafe behaviors of employees is to identify and discourage such behaviors. With 90% of all accidents resulting from unsafe behaviors, front-line supervisors must challenge and correct unsafe behaviors before they result in accidents and injuries.
Simple incentive programs, such as a lunch, for working injury free for a period, are permissible because the reward is not substantial. These are celebratory events, and the small reward is not enough to discourage an employee from reporting an injury.
Summary
This clarification should come as welcome news to many employers who were reluctant to implement or continue post-injury drug & alcohol testing and safety incentive programs. For post-injury drug & alcohol testing, this is a significant, positive change that will serve to hold employees accountable for working under the influence.
There is less of an impact for employers that implement a safety incentive program, but no safety incentive program should ever provide employees with a significant reward for not experiencing a work-related injury. Safety incentive programs should be designed to encourage the activities and safe behaviors that drive results and successful safety programs.
