OSHA reverses policy on drug testing, safety incentives

By Jeff Jones
Special to the UCBJ

On May 12, 2016, OSHA published a final rule that, among other things, amended 29 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses.  See29 C.F.R. § 1904.35(b)(1)(iv). In the preamble to the final rule and post-promulgation interpretive documents, OSHA discussed how the final rule could apply to action taken under workplace safety incentive programs and post-incident drug testing policies.

Recently, OSHA issued a memorandum clarifying the agency’s position that its rule prohibiting employer retaliation against employees for reporting work-related injuries or illnesses does not prohibit workplace safety incentive programs or post-incident drug testing. The purpose of the 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 October 11, 2018 memorandum titled, “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)” indicates most instances of workplace drug testing are permissible under 1940.35(b)(1)(iv).

Examples of permissible drug testing include:

  • Random drug testing.
  • Drug testing unrelated to an injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a DOT rule.
  • Drug testing to evaluate the root cause of a workplace incidentthat 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.

Of note, this guidance does not limit drug testing to tests that measure only substances in the employee’s system at the time of the accident, which was the case under the earlier guidance.

Incentive programs have returned. The memorandum provides that “rate-based” incentive programs that reward employees with a prize or bonus at the end of an injury-free period of time, or a manager based on their work unit’s lack of injuries are allowable so long as they are not implement in a manner that discourages reporting injuries or illnesses.  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.

Under the new interpretation, the only actions that are prohibited are if the employer withholds an incentive or performs post-incident drug testing in order “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” Based upon this statement, the memorandum appears to place the burden on the employee to establish the employer’s motive for performing a drug test. This is as yet unclear.

The memorandum indicates that anything in its October and November 2016 guidance under the prior administration that can be construed as inconsistent with the current advisory is superseded by the October 11, 2018 memorandum.  As such, employers who previously struggled with the prior guidance documents can now disregard them.

To read the full memorandum, visit https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11.

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.

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