As all members of the construction industry know, the prevention of the occurrence of work-related injuries and illnesses is a constant concern, and one that can have serious implications for the various contractual relationships on a construction project. To address these concerns, construction industry employers often implement incentive programs to award both the reporting of injuries or illnesses and the lack of occurrence of reportable incidents. In addition, both before and after injuries or illnesses occur, many employers have drug testing policies which are implemented with the goals of preventing and/or discovering the causes of work-related injuries and illnesses.

Over two years ago, on May 12, 2016 the Occupational Health and Safety Administration (OSHA) published a final rule that, among other things, prohibited employers from retaliating against employees for reporting work-related injuries or illnesses. That portion of the final rule became known as the Anti-Retaliation Rule. Almost immediately, there was confusion over which workplace safety incentive programs and post-incident drug testing policies, if any, were permissible under the final rule. OSHA originally took the position that certain programs and policies could deter employees form reporting work-related injuries and illnesses, thus violating the Anti-Retaliation Rule. OSHA has now clarified that the Anti-Retaliation Rule does not prohibit workplace safety incentive programs and post-incident drug testing.

In part to address these concerns, on October 11, 2018, OSHA issued a memorandum to clarify its position regarding whether drug testing policies and safety incentive programs would be considered violations of OSHA’s regulations. OSHA’s memo is the clearest guidance regarding its position on safety incentive and drug testing policies. It makes clear that, as a general rule, such policies are not a violation of OSHA requirements. The memo also states that it supersedes any other OSHA guidance previously issued which may have interpreted the Anti-Retaliation Rule to the contrary. Finally, the memo instructs OSHA officials to consult with OSHA’s Directorate of Enforcement Programs before issuing citations under the Anti-Retaliation Rule relating to safety incentive or drug testing policies.

OSHA acknowledged that some safety incentive programs promote workplace health and safety. Therefore, programs that encourage employees to report near-misses or perceived hazards or encourage employee involvement in the health and safety program are permissible. OSHA further clarified that incentive programs based upon the rates of reporting of work-related injuries or illnesses are permissible as long as they are not implemented in manner that discourages reporting.

An employer’s statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, cause employees to actually feel free to report. However, an employer may avoid inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just incident rates. In fact, OSHA provided examples of precautions employers could take to avoid unintentional deterrent effects of a rate-based safety incentive program or policy. The OSHA memo says that “any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

Drug Testing Policies

OSHA’s memo also clarified that many drug testing policies are permitted under the Anti-Retaliation Rule. Specifically, the memo noted that the following types of drug testing policies were not in violation of OSHA’s requirements:

  • Random drug testing;
  • Drug testing unrelated to the reporting of a work-related injury or illness;
  • Drug testing under a state workers’ compensation law;
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule; and
  • Drug testing to evaluate the root cause of a workplace incident that 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.

Employers are encouraged to regularly evaluate any work place safety incentive programs or drug testing policies to ensure continued compliance and consistency with business objectives.