United States: Employers Should Evaluate Safety Incentive Programs And Drug Testing Policies In Light Of New OSHA Rule

Executive Summary: The Occupational Safety and Health Administration (OSHA) recently published a final rule revising its recordkeeping and reporting regulation to specifically state that employer policies for reporting workplace injuries and illnesses must be reasonable and to specifically prohibit retaliation against employees who report a workplace injury or illness. Under the rule, procedures that deter or discourage employee reporting are not reasonable. The new rule has created concern among employers regarding the legality of disciplinary programs, mandatory post-incident drug testing, and employee safety incentive plans.

The Final Rule

While Section 11(c) of the Occupational Safety and Health Act prohibits retaliation against an employee for reporting a violation of the Act, OSHA cannot take action under that provision unless an employee files a complaint. Under the new rule, OSHA can cite an employer for taking an adverse action against an employee for reporting an injury or illness, even if the employee has not filed a complaint.

The new rule makes three changes to §§ 1904.35 and 1904.36 of the OSHA regulations: (1) requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; (2) clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and (3) prohibits employers from retaliating against employees for reporting work-related injuries or illnesses, consistent with the existing prohibition in section 11(c) of the Occupational Safety and Health Act.

Impact of the New Rule on Employer Disciplinary Policies

When OSHA proposed the new rule, some commentators raised concerns that the prohibition on retaliation could have a chilling effect on employers' ability to discipline employees who violate safety rules. In the preamble to the final rule, OSHA noted that the final rule only prohibits employers from taking adverse action against an employee because the employee reported an injury or illness. According to OSHA, "nothing in the final rule prohibits employers from disciplining employees for violating legitimate safety rules, even if the same employee who violated a safety rule also was injured as a result of that violation and reported that injury or illness (provided that employees who violate the same work rule are treated similarly without regard to whether they also reported a work-related illness or injury)."

OSHA emphasized that what the final rule prohibits is retaliatory adverse action taken against an employee simply because he or she reported a work-related injury or illness. Thus, while employers can discipline employees for violating workplace safety rules, they must ensure that injured employees are not disproportionately subjected to discipline when compared to employees who have not been injured.   

Blanket Post-Incident Drug Testing Policies

OSHA takes the position that blanket post-incident drug testing policies deter employees from reporting workplace injuries. While the final rule does not ban drug testing of employees, it prohibits employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.  OSHA states that drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. While OSHA does not require employers to specifically suspect drug use before testing, the agency states that there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. 

OSHA further stated that if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation (such as a workers' compensation law), the employer's motive would not be retaliatory, and the final rule would not prohibit such testing.

Incentive Programs

The final rule reiterates OSHA's position that incentive programs that deny benefits to employees who report injuries and illness discourage such reporting and violate the Occupational Safety and Health Act. While OSHA has stated that the final rule is not intended to categorically ban all incentive programs, it has also stated that programs must be structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.

In the preamble to the final rule, OSHA notes that it is a violation of the rule for an employer to take adverse action against an employee for reporting a work-related injury or illness, regardless of whether such action is part of an incentive program. For example, an incentive program that disqualifies an employee from receiving a bonus because the employee reported a work-related injury or illness would violate the rule because the denial of a bonus would be an adverse action. Additionally, such a program would deter or discourage a reasonable employee from reporting a work-related injury or illness. However, if an incentive program makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules rather than whether they reported any injuries or illnesses, the program would not violate the final rule.

Employers' Bottom Line

Although OSHA's position on the issues addressed above is not new, it has received heightened publicity since the final rule was published. The rule should not deter employers from disciplining employees who violate workplace safety rules, so long as employees who have suffered workplace injuries are not disciplined more frequently than employees who have not been injured. Blanket post-incident drug testing policies that are not connected with a state workers' compensation program or other legal requirement likely violate the rule. However, employers can still implement post-incident drug-testing programs so long as testing only occurs when employee drug use likely contributed to the accident, and the testing is not used to embarrass or discipline employees. Finally, while employee incentive programs that reward positive safety outcomes are problematic under the rule, employers can achieve the same positive safety outcomes without violating the rule by structuring incentive programs to reward compliant safety practices instead of outcomes.

OSHA's new rule is controversial and might be challenged in federal court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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