Jackson Kelly PLLC

Workplace Safety and Health News Alert


October 11, 2018

For clients and friends of Jackson Kelly PLLC
Volume 14, Number 14
©2018 Jackson Kelly PLLC

In May 2016, the Occupational Safety and Health Administration (“OSHA”) published a rule that amended 29 C.F.R. § 1904.35 and added a provision prohibiting employers from retaliating against employers for reporting work-related injuries or illnesses.  See 29 C.F.R. § 1904.35(b)(1)(iv).  In the preamble to the rule, OSHA discussed how it could issue citations to employers based on workplace safety incentive programs and post-incident drug testing policies should either program be found to discourage reporting of injuries.  Jackson Kelly PLLC published numerous safety and health blogs regarding these issues. 

OSHA’s memorandum that was issued on October 11, 2018, provides that it “clarifies” the department’s position that 29 C.F.R. § 1904.35 does not prohibit workplace safety incentive programs or post‑incident drug testing.  Action taken under a safety incentive program or post-incident drug testing policy would only violate OSHA regulations 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.  OSHA further stated that rate‑based incentive programs are permissible under 29 C.F.R. § 1904.35 as long as they are not implemented in a manner that discourages reporting.  Thus, if an employer takes a negative action against an employee under a rate‑based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.  OSHA provides little clarity of what “adequate precautions” could be under the rule.  For example, a statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, be adequate to ensure employees feel free to report.  OSHA states that an employer could avoid the inadvertent deterrent effect of a rate‑based incentive program by taking positive steps to create a workplace culture that emphasizes safety and not just rates.  OSHA provides examples such as incentive programs that rewards employees for identifying unsafe conditions in the workplace; a training program for employees to reinforce rights and responsibilities; and a mechanism for accurately evaluating employees’ willingness to report injury or illnesses.  Based on OSHA guidance in this memorandum, should employers choose to maintain rate‑based incentive programs, they should also consider counterbalancing the rate‑base program with incentives based on other safety and health factors. 

With respect to workplace drug testing, OSHA states that most instances would be permissible. OSHA provides examples including:  random drug testing; drug testing unrelated to the reporting of an injury; drug testing under state Workers’ Compensation law; drug testing under other federal laws such as the Department of Transportation; and drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  OSHA advises that if an employer is drug testing to investigate an incident, it should test all employees whose conduct could have contributed to the incident and not just the injured employee.  OSHA further states that if prior guidance documents are inconsistent with this position, this memorandum supersedes them.  While OSHA provides guidance with respect to workplace drug testing, it is still advising employers to drug test for reasons other than simply reporting a workplace injury. 

For questions regarding this compliance memorandum or help in evaluating your incentive program or drug testing, please contact Jackson Kelly PLLC.

Denver, Colorado

Responsible Attorney
Karen L. Johnston

The Jackson Kelly PLLC Workplace Safety & Health News-Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Workplace Safety & Health News-Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

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