OSHA confirms that employers can require post-incident drug tests and can also offer safety incentives

Clarifying what had been a controversial approach, OSHA issued a memo that clarifies its position regarding two common employer policies, confirming that neither constitutes unlawful retaliation:

1. Post-accident drug testing will not generally violate OSHA’s anti-retaliation provisions.

Action taken under a safety incentive program or post-incident drug testing policy 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 or illness rather than for the legitimate purpose of promoting workplace safety and health.

In addition, OSHA clarified, other common forms of drug testing also do not generally violate OSHA’s anti-retaliation provisions.

In addition, most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv). Examples of permissible 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.

2. Common safety incentive programs also do not violate OSHA’s anti-retaliation provisions.

OSHA’s Memorandum reverses course on a 2016 approach in which OSHA had announced an intent to find that such programs might violate the anti-retaliation provisions of OSHA if they had the effect of disincentivizing employees from reporting injuries and accidents at work. OSHA’s Memorandum explains it, now, believes such programs can be effective tools for enhancing, not reducing, workplace safety.

The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy 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 or illness rather than for the legitimate purpose of promoting workplace safety and health.

Source: OSHA Memorandum (10/11/18).