OSHA’s New Rules on Retaliation Incentive Programs, Post-Incident Drug Testing and Disciplinary Programs

Employers need to determine whether or not their safety incentive programs, as well as their post-accident drug and alcohol testing programs and disciplinary program, comply with OSHA’s new requirements.

In May 2016, OSHA published a final rule that updated requirements for reporting work-related injuries and illnesses, which also included a new provision that specifically addressed retaliation for reporting incidents. Subsequently, OSHA released a memo providing guidance on how to comply with the various requirements found in the final rule. The memo addresses an employer’s obligation to have “reasonable procedures” in place for employees to report injuries and illnesses without the fear of retaliation.

The anti-retaliation section, which is one of the most important for employers to understand, describes what OSHA will consider a violation when looking at the overall reporting program—especially in determining if there is a potential for retaliation against employees who report incidents (for example, withholding a benefit—such as a cash prize drawing or other substantial award—simply because of a reported injury or illness). The rule doesn’t prohibit incentive programs. 

However, employers cannot create incentive programs that deter or discourage any employee from reporting an injury or illness.

Effective Safety Incentive Programs

Incentive programs should encourage safe work practices and promote worker participation in safety-related activities. Not only will these types of incentive programs comply with OSHA, but they will also be more effective in encouraging safe behavior, thereby reducing the number of injuries. Some examples of behaviors that can be rewarded with an effective incentive programs include:

•  Participation in safety program activities and evaluations;      
• Completion of safety and health training;     
• Reporting and responding to hazards and close calls/near misses; 
• Safety walk-throughs and identification of potential safety hazards;
• Compliance with planned preventive maintenance schedules;
• Following workplace safety rules.

The key to an effective safety incentive program is to reward safe behavior rather than the lack of an injury. A positive way of accomplishing this is by setting up a program that will provide a cash prize for each work group that goes an entire month with all members of the work group complying with specific safety rules, such as wearing required fall protection. Supervisors of each work group should be rewarded as well. Rewards should be at least every 6 weeks, and can build up to a year-long grand prize.

If an employer does set up such an incentive program, what happens if an employee sustains a lost-time injury by falling off a platform while not wearing the required fall protection and he reports the injury to the employer?  The employer can then cancel the cash prize drawing for that specific work group that month because the employee failed to wear the required fall protection, NOT because he was injured. However, there must be an active incentive program in place and the employer must be actively monitoring for compliance. Employees cannot receive the reward when they do not use the fall protection, regardless of whether or not an injury occurred.

Post-Incident Drug Testing

The OSHA rule does not prohibit drug testing of employees, including drug testing required by the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.

Employers can conduct post-incident drug testing if there is a “reasonable possibility” that employee drug use could have contributed to the reported injury or illness. However, if employee drug use could not have contributed to the injury or illness, post-incident drug testing would likely only discourage reporting without contributing to the employer's understanding of why the injury occurred. Drug testing under these conditions could be considered retaliation.

For example, if an employee reports a repetitive strain injury and the employer requires post-incident drug testing, then that testing would be prohibited because it is unlikely that a repetitive strain injury would be related to drug use by the employee. In a different situation, it would be reasonable for an employer to require post-incident drug testing for a worker who reported an injury while operating a forklift if the employee's conduct contributed to the injury. Employers do not need to specifically suspect drug use before post-incident testing, but there should be a “reasonable” possibility that drug use by the reporting employee could have contributed to the reported injury or illness. Prior to any drug/alcohol testing a company policy must be in place and administered uniformly.

Disciplinary Program

Employers cannot use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.

The rule prohibits disciplining employees simply because they report work-related injuries or illnesses without regard to the circumstances of the injuries or illnesses, such as automatically suspending workers who report an injury. The rule also does not allow disciplining an employee who reports a work-related injury or illness by stating that the employee violated a work rule if the real reason for the discipline was the reporting of an injury. For example, if an employer disciplines an employee who reported a work-related injury for violating a work rule, but fails to enforce the work rule against other employees who violate the same rule but do not report an injury. It is the same as described in the safety incentive program criteria.

The most common time this type of retaliation is seen is when an employer disciplines an employee who reported an injury or illness for violating a vague rule such as "work carefully" or "paying attention." In this example, the reported injury or illness is often the only basis for disciplining the employee. A rule of thumb to follow is if the employee had not reported the injury or illness, would the employer have still disciplined the employee?  If not, then the employer cannot discipline them if they report an injury.

Effective and legitimate workplace safety programs should treat all workers who violate safety rules in an equivalent manner, regardless of whether or not the violation resulted in the worker reporting an injury or illness. On the other hand, employees who follow the rules should be rewarded fairly and equally as well.