OSHA Issues Clarification on Workplace Safety Incentive Programs and Post-Incident Drug Testing

By Stephen B. Maule - McMahon Berger, PC.

October 22, 2018

For the past couple of years, the Occupational Safety and Health Administration (OSHA) has enforced a rule that prohibits employers from retaliating against employees for reporting work-related injuries or illnesses.  Specifically, relying on 29 C.F.R §1904.35(b)(1)(iv), OSHA took the position that workplace safety incentive programs and post-incident drug test policies could be limited.  As a result, many employers modified their drug testing policies to reflect this change in ideology by limiting post-incident drug testing to those instances where the employer had a reasonable suspicion that drug use contributed to the accident or injury.

On October 11, 2018, OSHA Acting Director Kim Stille issued an interpretation letter clarifying the agency’s position on workplace safety incentive programs and post-incident drug testing.  As set forth in the document, its purpose is to “clarify” OSHA’s stance that the rule does NOT prohibit workplace safety incentive programs or post-incident drug testing.  The letter goes on to state that OSHA believes many employers who implement workplace safety incentive programs and/or conduct post-incident drug testing “do so to promote workplace safety and health,” and not simply to reduce reporting rates.  The Acting Director concludes that only if an employer takes an adverse action against an employee in order to penalize him/her for reporting a work-related injury or illness would there be a violation of the rule.

In other words, where the employer’s legitimate business purpose in conducting the post-incident drug test is to promote workplace safety and health, there is no violation.  Evidence that the employer encourages the reporting of injuries or illnesses will support an inference that the employer’s negative action toward an employee was not motivated by an illegitimate purpose.  For example, according to OSHA’s letter, an employer could institute an incentive program that rewards employees for identifying unsafe conditions in the workplace in addition to including a statement in an employee handbook that employees will not be retaliated against for reporting injuries or illnesses.

Further, OSHA makes it clear in the letter that most types of drug testing are permissible under the rule, including:

• random drug testing;
• drug testing unrelated to the reporting of a work-related injury or illness;
• drug testing under state workers’ compensation laws or federal law, such as the Department of Transportation rule; and
• drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.

With respect to the final category, OSHA advises employers to test all employees who could have contributed to the incident, not just the individual who reported injuries.

As a result of OSHA’s change in policy, employers should feel more confident in their ability to drug test employees after a workplace incident.  Before conducting such a test, however, employers first should make sure the test is being conducted to evaluate the root cause of the incident and that all employees involved are tested.  The primary focus at all times must be on the safety of the workforce and taking whatever action is necessary to prevent future incidents.  Any appearance whatsoever of retaliation for engaging in protected activity, such as reporting the incident, must be eliminated to avoid potential liability.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts.  The choice of a lawyer is an important decision and should not be based solely on advertisements.