When OSHA released its Final Rule in May of this year to amend and improve tracking of workplace injuries and illnesses for its Recordkeeping Regulation, it emphasized that the purpose of the rule was to: “modernize injury data collection” by requiring electronic reporting of injury data. However, the Rule also strengthened anti-retaliation measures in a way that has potentially large consequences for workplace drug testing and safety incentive programs. Under the Final Rule, “OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation.”
The Final Rule does not categorically prohibit drug testing of employees after incidents. However, it does prohibit “employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.” It also says “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.”
However, in another telling passage, OSHA adds: “If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing.”
OSHA is making it clear that it has a problem with drug testing used as a form of punishment after an incident. The motivation behind the testing is important. The Final Rule also cautions specifically against drug testing which “may be perceived as punitive or embarrassing to the employee.” Note that the employee’s perceptions can impact whether testing is appropriate or not.
So, with these new requirements in mind, if a worker is still given a drug test after an incident, an employer will want to be able to show OSHA that:
- There was “probable cause” that the incident was caused by drug related impairment. (For example, the worker involved was slurring his or her speech, acting erratically, or smelled of drugs or alcohol. Or the nature of the incident involved something an impaired person would do.)
- The drug test(s) will actually test for the suspected substance(s) resulting in the impairment.
- The employer was not motivated by retaliation when administering the drug test.
- The drug test was not presented as punishment, and it was not embarrassing to the employee tested.
In the Rule, OSHA also makes clear that it frowns on drug testing when there is another clear, compelling reason why an incident might have occurred. For example, if an employee causes an incident after being stung by a bee or startled by a lightning strike, OSHA cautions against concluding that a drug test is appropriate.
OSHA says it has instituted these requirements around drug testing because it believes if employees are routinely or automatically tested after each incident, they may fail to report incidents. It is clear from the language OSHA uses in the Rule that even “blanket drug testing” can be inappropriate if, in the estimation of an OSHA inspector, it is being used to deter reporting. If you have a blanket testing policy in place, you may want to reevaluate it in light of the new rule. Whatever you choose, OSHA is making clear that employers will need to be ready to justify whatever testing actions they take after an incident.
On the other side of the coin, the Final Rule also clarifies that incentive programs which reward a lack of incidents can creep into inappropriate territory. Again, the rule does not prohibit incentive programs outright. However, it does say: “employers must not create incentive programs that deter or discourage an employee from reporting an injury or illness.”
So, what goes too far and discourages reporting? OSHA gives a few real-world examples in the text of the Final Rule. One is an employer’s program that offered workers “up to $1,500 only if zero recordable injuries were reported.” Another is a program where workers could win high value “items such as large screen televisions” if there were no incidents. OSHA felt that these programs created too much pressure (and peer pressure) for workers not to report because of the value of the rewards involved.
According to OSHA, any incentive program must make the reward for zero incidents modest enough that it would not tempt workers to not report an incident. OSHA says that high-value rewards can still be permissible, but they must be contingent upon something other than avoiding incidents — things like correctly following safety procedures, attending safety trainings, or submitting ideas and feedback around workplace safety. You can also include rewards in incentive programs that reward reporting.
Need some assistance ensuring that your drug testing and incentive programs stay in compliance with these new requirements? Tools from VelocityEHS can help! Our solutions can let you manage incidents and track who has attended safety meetings, who has participated in incentive programs, and who has completed in-person or online safety trainings. Our Audit & Inspection tool can help companies audit drug testing policies, and evaluate safety incentive programs. You can also customize and configure our solutions to specifically track drug testing qualified incidents as needed. For more information, visit our website.