On October 11, 2018, OSHA issued interpretive guidance designed to "clarify" controversial language in the Preamble to the anti-retaliation provisions in the recordkeeping and reporting amendments adopted by the Obama OSHA Administrator in 2016. The Preamble, which can be cited as authority in contested OSHA matters, suggested that employer safety-incentive programs are generally suspect because, in OSHA's view, they incentivize workers not to report injuries/illnesses (or put peer pressure on co-workers not to report) and suggested that post-incident drug-testing was facially grounds for proving retaliation against workers for reporting injuries/illnesses. The Trump OSHA Administrator isn't proposing a change to the regulation or the Preamble but backs away from interpretive guidance that pushed an aggressive view of the suggestions in the Preamble and "clarifies" that employers are not prohibited from adopting policies that provide safety incentives or post-incident drug-testing and gives advice as to other things an employer might do to show that it is promoting workplace safety and health, so to any avoid the argument that the employer's policy creates "inadvertent deterrence" to injury/illness reporting. Review OSHA standard interpretations here.
Bottom line: Employers still need to be thoughtful as to how they construct, communicate, and implement safety-incentive and drug-testing policies so as to avoid claims that the policies deter injury/illness reporting; but, employers now know that such policies will not be viewed by OSHA as a per se violation of OSHA’s 2016 anti-retaliation regulation. This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.