OSHA Releases Memo Clarifying Incentive Programs and Drug Testing

By: Kenny Young, CSP, ARM, AINS, CEAS

On October 11, 2018 OSHA issued a Memorandum for Regional Administrators and State Designees clarifying OSHA’s position on workplace safety incentive programs and post incident drug testing under 1904.35(b)(1)(iv). In May 2016 OSHA added requirements to the recordkeeping standard prohibiting employers from retaliating against employees for reporting injuries. Some examples given of potentially limiting employees from reporting workplace injuries were blanket post-accident drug testing and safety incentive programs solely tied to incident rates or not having injuries.

In my opinion, some of the clarification made things more confusing than they already were. Rate-based incentive programs will be allowed, and employers will be able to withhold prizes or bonuses because of a reported injury. However, the employer must have “implemented adequate precautions to ensure that employees feel free to report an injury or illness.” A policy statement stating that retaliation won’t occur for reporting is not considered an adequate precaution alone. This makes for a very subjective system in my eyes. If a $500 bonus is on the line for an employee who makes that in a week or more for not getting hurt, what precautions can a company institute to ensure that the employee will report their injury?

OSHA says that “employee reporting would likely be counterbalanced if the employer” implements other elements in the incentive program. These would include things like rewards for reporting unsafe conditions, training employees on their reporting rights, and a mechanism to evaluate employees’ willingness to report injuries. The employer can create a culture that “emphasizes safety, not just rates.” But isn’t building a culture on injury rates exactly what we’re doing if we’re using rate-based incentives? Who wants to be the one on day 360 of the year that reports the injury cancelling the year end safety bonus for everyone? Are we sure that training on rights and responsibilities will stop other employees from treating the employee that is responsible for killing the bonus any differently?

There was also a clarification of drug testing. One statement that I found particularly helpful was, “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.” I would’ve preferred a “shall” here, but I’ll take it. Therefore, if a forklift driver runs over the foot of a coworker, the employer would test the driver as well as the injured employee.

At the end of the memo, it states, “to the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” It is VERY important to understand this language. I’ve already read some blogs and articles that have made it sound like the memo is completely backtracking from the incentive program and drug testing guidance previously provided. That information is all still valid UNLESS it contradicts the information in the specific document. Therefore, you need to be familiar with the information in each applicable memo and guidance document. This memo only clarifies/replaces parts, but not the rest.