Over the past month, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued clarification on its anti-retaliation rule related to workplace safety incentive programs and post-incident drug testing. The Final Rule, launched on December 1, 2016, caused employers and their counsel to question whether safety incentive programs and post-incident drug testing would be treated as retaliatory.
The clarifying memo sets forth some important guidance for employers:
- The Final Rule of 2016 does not prohibit workplace safety incentive programs or post-incident drug testing;
- Incentive programs are still considered by OSHA as an “important tool to promote workplace safety and health”; and
- Most post-incident drug testing is still permissible.
With respect to incentive programs, OSHA specifically focused on rate-based programs under which employees may be penalized, such as by withholding a bonus or prize, based on reported injuries. OSHA clarified that such programs are still permissible as long as an employer “has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”
Post-incident drug testing is still permissible, as is random testing and a slew of other drug testing programs. However, OSHA noted that if am employer uses drug testing to investigate a safety incident, it should test “all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” Thus, employers using drug testing in the post-incident context must be certain that all potential safety factors are considered, and test all employees whose conduct led to the incident under investigation. Importantly, employers should be aware of restrictions on drug testing in certain states (such as California) and localities (such as the City of Boulder, Colorado) that prohibit or limit drug testing in circumstances where it would otherwise be allowed in OSHA’s interpretation.