The Occupational Safety and Health Administration (OSHA) published a memorandum to help clarify the Department’s position on 29 C.F.R. § 1904.35 (b)(1)(iv).
The rule prohibited employers from discharging or discriminating against an employee for reporting a work-related injuries or illness. OSHA noted in the Preamble that in some instances, post-incident drug and alcohol testing could be considered a retaliatory practice. In addition, it stated that blanket requirements for post-accident testing may be considered a violation by OSHA.
This left employers understandably confused about the types of safety programs and actions permissible without incurring OSHA violations. So, OSHA’s new standard interpretation 29 C.F.R. § 1904.35 (b)(1)(iv) published on October 11, 2018 provides much needed guidance on workplace safety programs:
Post-incident drug testing is permitted and is an acceptable workplace safety practice.
OSHA understands that most employers conduct post-incident drug testing to promote workplace safety and health. Post-incident drug testing policies and safety incentive programs 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.
Most instances of permissible workplace drug testing 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.
Under this interpretation, employers may lawfully implement post-incident (post-accident) drug-testing programs, random drug testing programs and DOT drug testing programs. However, post-incident testing needs to be conducted consistently on any employee who may have contributed to the accident, not just the injured party. Post-incident testing may not be used as a retaliatory measure.
Incentive programs may be used to promote workplace safety and health.
OSHA’s new interpretation permits and encourages safety incentive programs for employees. Programs that reward employees with a prize or bonus at the end of an injury-free month or that reward managers based on their department or work units lack of injuries is permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting.
OSHA cautions employers that a simple statement declaring that employees are encouraged to report injuries or illnesses without retaliation, may not, by itself, be enough to ensure that employees feel free to report incidents if there is a lost opportunity to receive a substantial reward.
Companies need to create a workplace culture that promotes safety. Additional precautions, outlined by OSHA are highly recommended:
- 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 or
- A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
Follow-Up Activities Based on Guidelines:
- Review your drug testing policy to ensure compliance with the new OSHA guidance
- Make sure employees are educated on all drug testing policies, workplace safety guidelines and procedures
- Remove any post-accident blanket testing rules and make sure that testing is done only when there is a reasonable suspicion that drug/alcohol use contributed to the accident or injury
- Test all parties involved in an accident, not just the injured employee
- Provide reasonable suspicion training for all supervisors and managers
- Review federal and state laws.
- FMCSA-regulated employers must perform testing in accordance with 382.303.
- Review your accident reporting policies and process with your legal counsel
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