In 2016, OSHA issued an anti-retaliation provision prohibiting employers from retaliating against employees for reporting workplace injuries. Since then, employers within the construction industry have been hesitant to implement safety incentive programs and conduct post-incident drug testing for fear of violating the new rule. OSHA recently clarified its position by stating that OSHA “does not prohibit workplace safety incentive programs or post-incident drug testing.”
OSHA clarified that positive action taken under a program that rewards workers for reporting near-misses or hazards is always permissible under the rule. OSHA also clarified its stance on the more controversial rate-based programs (i.e., providing bonuses to employees for injury free months of work), stating that they are permissible under the rule as long as they are not implemented in a manner that discourages reporting.
Permissible drug testing includes random drug testing, drug testing pursuant to state and federal laws, and most importantly, post-accident drug testing to determine the root cause of the incident that harmed or could have harmed employees as long as the testing is not limited to the employees who reported injuries. Employers should now feel comfortable conducting post-accident drug testing of employees so long as they do not target the specific employees who reported the incident and instead test all those whose conduct may have contributed to the incident.
As long as employers implement adequate precautions to ensure that employees feel free to report injuries, OSHA should not take negative action against the employers for negative action against employees (i.e., withholding of bonus). Action taken under a safety incentive program or post-incident drug testing policy would only violate the anti-retaliation rule if the employer penalized an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue.