In May 2016, OSHA published a final rule revising its Recording and Reporting Occupational Injuries and Illness regulation – 29 CFR § 1904.35. In addition to requiring that certain information be submitted to OSHA, these revised regulations involve how employers inform employees to report work-related injuries and illnesses, specify that procedures for reporting must be reasonable and not discourage employees from reporting, and prohibit employers from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness.
The most controversial portions of these new regulations involve interpretations set forth in the preamble to the final rule involving incentive programs and drug and alcohol testing. For example, the preamble states that incentive programs that would discourage employees from reporting injuries, such as rewards based on a workplace being “injury free,” violate the new regulations. Similarly, the preamble indicates that mandatory post-injury drug and alcohol testing are impermissible because they can discourage reporting. OSHA suggests 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.”
Initially, this portion of the regulations became effective August 10, 2016, but OSHA subsequently delayed enforcement until November 1, 2016. There is also a pending case in the Northern District of Texas challenging the new provisions. As a result of a motion pending in that case, last week OSHA further delayed enforcement of these provisions until December 1, 2016.
On October 19, 2016, the Deputy Assistant Secretary of OSHA issued a memorandum to its Regional Administrators providing guidance on enforcing the new provisions (the “Guidance”). With respect to incentive programs, the Guidance reaffirms what was stated in the preamble. However, with respect to drug and alcohol testing, the Guidance implicitly acknowledges problems with positions stated in the preamble and attempts to address them. OSHA acknowledges that to prove a violation of 1904.35(b)(1)(iv), which includes the anti-retaliation language, it must establish the three elements of retaliation: a protected report of an injury or illness, adverse action, and causation. OSHA provides examples of how it will evaluate the reasonableness of drug testing. OSHA also clarifies that it will only consider whether the drug test is capable of measuring impairment where such a test is available (currently, such a test is only available for alcohol). Potential violations associated with drug and alcohol testing may result not from a company’s policy, but how it is implemented. OSHA will evaluate whether a drug test is being used as a form of discipline against employees who report an injury or illness. Assuming enforcement of these provisions is not further delayed, and depending on the pending case in the Northern District of Texas, employers can utilize the Guidance to understand the nuances of OSHA’s view on incentive programs and drug testing policies to evaluate whether their programs and policies comply with the new provisions.