Clarifying OSHA's Anti-Retaliation Rule

On October 11, 2018 OSHA issued a Standard Interpretation to clarify its position on the new recordkeeping rule’s anti-retaliation provisions that were put into place in 2016.  Essentially, they completely reversed their position on previous limitations with safety incentive programs and post-incident drug testing. 

According to the memo, OSHA believes that safety incentive programs and post-incident drug testing are generally not put into place to penalize employees for reporting injuries.  Rather, they are implemented to promote the safety and health in the workplace.  

How does the new interpretation impact you?  

The original regulation required employers to remove all-inclusive testing rules for post-incident drug testing.  

The rule called for employers to be certain that drug testing only occurred when there was a reasonable basis to assume drug use contributed to an accident or injury.  They went to great lengths trying to explain the rule by issuing several example scenarios.  To many, the explanations were very confusing and vague.  The recent interpretation supersedes all of the prior guidance on this topic.

Simply stated, the rule states that post-incident drug testing is allowed in the following circumstances: 

• “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”; and
• “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.”

This should be treated as good news because it is clear now that employers do not need to analyze whether there was a “reasonable possibility” that drugs or alcohol could have contributed to an accident.  Now, broad post-incident drug and alcohol testing is allowed as long as all employees whose conduct could have contributed to the accident are tested.

We would recommend that you conduct post-incident drug testing consistently.  Ultimately, the goal is to ensure that employees feel free to report an injury or illness. 

Safety Incentives

We’re a firm believe that the best safety incentive is the hard earned paycheck at the end of the week. However, safety incentives, if administered properly, can be an effective tool to continuously reward smart/safe decisions. If not administered properly, incentives for safe behavior can become an entitlement and no longer hold safety value.

Previously, OSHA’s clout on incentives was difficult to understand. Organizations that have had long standing, effectively ran safety incentives found themselves under the gun. “Do I stop offering this profit sharing and avoid unwanted OSHA attention or “Do I accept the risk and keep saying thank you to my employees for coming to work, ready to work hard and safe?”

While incentives have never been outright banned. However, the pressure was put on the employer to prove that the incentive wasn’t a deterrent to report incidents/injuries. OSHA’s stance is still that incentives may not be a deterrent however it has been formally recognized as an acceptable tool to increase safety awareness and success. 

What makes for a successful safety incentive?

• Be creative and make it count for the employees. Their incentive should reflect their everyday responsibilities and choices
• Include a group of employees in on the developing stage of the incentive. Find out what would drive them to make better decisions.
• Keep their skin in the game. Don’t allow employees who have a bad day to be completely exiled from the incentive. Make them feel the pain a little but give them a chance to earn it back.
• Encourage a catch them doing something right reward
• Consider rewarding employees for reporting of unsafe acts or conditions
• Always communicate with the employees that a failure to report an injury, in an effort to save the incentive, will be strictly prohibited and could be a disqualifying factor all together. 

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