The federal Occupational Safety and Health Administration (OSHA) has issued new guidance that grants employers greater flexibility in promoting workplace safety and conducting post-accident drug testing.
The guidance is based on federal regulations at 29 CFR 1904.35 which prohibit employers from discriminating against workers or firing them for reporting work-related injuries and illnesses. In its new announcement, OSHA retracted informal Obama-era guidance that took a strict approach in evaluating whether workplace safety incentives and post-accident drug testing might illegally discourage workers from reporting job-related injuries.
A Free Pass for Employers? Not So Fast
The new guidance isn’t a free pass for employers, though. It authorizes employers to offer a prize or bonus for injury-free reporting periods, but only if the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.
How to Encourage Workers to Report Injuries
It may not be enough to have a company policy encouraging workers to report injuries, especially if the amount of the safety incentive is substantial. Employers may need to take additional steps to ensure an incentive program doesn’t inadvertently deter reporting. OSHA offers ideas, such as:
- a reward for identifying unsafe conditions
- a training program emphasizing reporting protections
- a mechanism to measure employees’ willingness to report injuries and illnesses.
New Guidance on Post-Incident Drug Testing
The new guidance provides less detail on drug testing, other than to say employers may do so to “evaluate the root cause of a workplace incident that harmed or could have harmed employees.” OSHA says if an employer conducts post-incident drug testing, it “should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”
Tips for Employers
How Will My State Be Affected?
Federal OSHA’s new approach definitely affects employers in Idaho and Montana. Both Cal/OSHA and Washington’s Division of Occupational Safety and Health (DOSH) have noted on their web pages that they haven’t gotten around to adopting federal OSHA’s recordkeeping and anti-retaliation regulations, so it’s questionable how this informal shift in federal policy will affect employers in California and Washington. In contrast, Oregon OSHA adopted the federal regulations, and in February 2017 issued informal fact sheets on incentive programs and post-incident drug and alcohol testing. Because state law can be more protective of employees than federal law, Oregon employers should pay attention to the Oregon OSHA fact sheets.
Designing Safety Incentive Programs
When designing a safety incentive program, it’s still a best practice to include near misses and property damage in addition to injuries. For post-accident drug testing, the prior guidance unequivocally stated that employers shouldn’t test workers who report repetitive motion injuries. Although the new guidance is silent on this specific point, the safer approach is to confine post-accident drug and alcohol testing to identifiable events (such as a slip and fall), and to conduct the testing within a short time period after the event occurred. Vigilant members can work with their dedicated employment attorney and safety professional for help with these issues.
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This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.