On October 11, 2018, the Occupational Safety and Hazard Administration (OSHA) released an updated Memorandum to clarify its position on whether employee drug screening and safety incentive programs are permissible. In May 2016, OSHA published a final rule that prohibited employers from retaliating against their employees for reporting work-related injuries or illnesses. This provision (found at 29 C.F.R. § 1904.35(b)(1)(iv)) was interpreted by many to potentially apply to employer post-accident drug screening and safety incentive programs. Since then, it has been uncertain as to whether OSHA would deem an employer’s drug screening and safety incentive programs as retaliation for reporting or filing Workers’ Compensation claims. OSHA has recently clarified that it would not consider such programs to be retaliation, under certain circumstances.
In its Memorandum, OSHA recognized that “many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.” OSHA further clarified that post-accident drug screening and safety incentive programs would only be considered as retaliation “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 and health.”
Included with this update regarding incentive programs, OSHA outlined several “positive steps to create a workplace culture that emphasizes safety, not just rates,” Including (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; and (3) a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
OSHA stated that “most instances of workplace drug testing are permissible.” Permissible drug testing includes: 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. OSHA also recommends that employers drug test not only the individual who is harmed by the work injury but also anyone around the employee who could have contributed to the accident. If you would like to establish or implement an employee drug screening or safety incentive program, or would like your existing programs to be reviewed to ensure that they comply with the latest guidance, please contact Kristina Curry at Pickrel, Schaeffer & Ebeling at (937) 223-1130 or via email at firstname.lastname@example.org.