From SLMA's OSHA counsel at Kilpatrick Townsend:
On October 11, 2018, OSHA issued long-awaited guidance clarifying its position on workplace safety incentive programs and post-incident drug testing policies. Prior OSHA interpretations of the electronic reporting rule suggested that some safety incentive programs (particularly programs that focused on injury rate reduction) would likely violate the anti-retaliation provisions of the rule if they disqualified employees from receiving cash prizes or other awards following the reporting of a workplace injury or illness. The new OSHA guidance, however, expressly states that the electronic reporting rule does not prohibit workplace safety incentive programs or post-accident drug testing. OSHA further clarified that any adverse action taken pursuant to a safety incentive program or post-incident drug testing policy would only violate the electronic reporting rule 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 or health.
Rate-based safety incentive programs in particular are highlighted in the new OSHA standard interpretation as permissible under the electronic reporting rule, provided that the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness. OSHA is careful to note that a simple statement that employers are encouraged to report and will not face retaliation for reporting may not, by itself, satisfy the requirement, but other acceptable methods may include: 1) an incentive program that rewards employees for identifying unsafe conditions in the workplace; 2) a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer's non-retaliation policy; or 3) a mechanism for accurately evaluating employees' willingness to report injuries and illnesses.
OSHA also reiterates that most instances of workplace drug testing are permissible under the electronic reporting rule, including:
- 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 Department of Transportation rule.
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed an employee. (Note that in the instance of root cause testing, the employer should test all employees whose conduct could have reported to the incident, not just employees who reported injuries).
OSHA expressly states that to the extent any prior OSHA guidance is inconsistent, it has been superseded. The new interpretative guidance is available at: