Post-accident drug testing and safety incentive programs have been debated within many construction companies during the past few years. The discussion usually centers on the need to administer post-accident drug testing and the benefits of implementing a safety incentive program. If a company decided to implement either of these components it might question if it was legal to do so.
OSHA published a final rule in 2016 that, among other things, added a provision to 29 C.F.R. § 1904.35 prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. This final rule and a few subsequent OSHA clarification documents changed the way employers administered and conducted both post-incident drug testing programs and safety incentive programs.
The common interpretation or position taken by most employers after this 2016 final rule was as follows:
- Post-incident Drug Testing. Employers can now test the injured employee only if they can show that being under the influence of drugs was a likely direct root cause of the incident. This method completely went against some insurance carrier requirements and sometimes human resources. The common practice was to drug test everyone to see if being under the influence of drugs was a root cause and to ensure that employees were not discriminated against in the administration of our drug testing process.
- Safety Incentive Programs. Employers need to eliminate any type of incentive program involving injury statistics. It could be construed as retaliating against an employee if he was denied the incentive because of an injury. This could discourage employees from reporting injuries so they do not lose that incentive.
On Oct. 11, 2018, OSHA released a memorandum that clarified and superseded all previous OSHA interpretive documents that are inconsistent with the position of this new 2018 memorandum regarding the final rule.
What Does This New Memorandum Mean for Construction Companies?
Post-incident drug testing
OSHA now allows for “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.” (OSHA, 2018)
Since OSHA’s position has been clarified, employers can now drug test all injured employees to determine if being under the influence of illegal drugs was a root cause of the incident. OSHA does emphasize that employers should review each incident and subsequently test all contributing employees, not just the employee who was injured.
Safety incentive programs
OSHA’s new stance on safety incentive programs states “Rate-based incentive programs are permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.” (OSHA, 2018)
This allows employers to keep or reinstitute a commonly used safety incentive program that positively rewards people in the company for meeting statistical safety goals related to injuries. However, OSHA continues, “A statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, be adequate to ensure that employees actually feel free to report, particularly when the consequence for reporting will be a lost opportunity to receive a substantial reward,” (OSHA, 2018), which means that employers who choose to use this type of safety incentive program must take an extra effort to train and encourage employees on reporting all injuries. Due to this statement, it appears that this may still be a “use at your own risk” method of safety incentive. It is still going to fall under the opinion of the OSHA compliance officer or whistle-blower investigator to determine if employers are adequately meeting the intent of the new memorandum. The full OSHA memorandum is Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing under 29 C.F.R. § 1904.35(b)(1)(iv).
To learn more about OSHA’s resources and the workers’ compensation credits available to companies that meet requirements for drug- free workplace and safety programs, read “Creating a safe workplace to benefit employers and employees.”
