We came across a helpful article in The National Law Review. Authors Tressi L. Cordaro and Kathryn J. Russo of Jackson Lewis P.C. broke down the new “Clarification of OSHA’s position on workplace safety incentive programs and post incident drug testing under 29 C.F.R 1904-35(b)(1)(v)” in a recent issue.
This regulation specifically prohibits employers from discharging or discriminating against an employee for reporting a work-related injury or illness. According to the authors, previous guidance from OSHA had said that some safety incentive policies could prevents employees from reporting any work-related illnesses or injuries. The agency had also stated that post-accident drug and alcohol testing could be a retaliatory practice.
The new guidance, published on October 11, states that the safety incentive programs are only retaliatory and unlawful if they seek to penalize an employee for reporting a work-related injury or illness, rather than for the legitimate purpose of promoting workplace safety and health. Incentive programs that reward employees for reporting near misses or hazards or encourage involvement in a management system are permissible. Rate-based safety incentive programs, which hope to reduce the number of work-related illnesses and injuries, are also acceptable as long as they are not implemented in a way that discourages reporting. Employers should be careful to ensure that they have put enough precautions into place to make sure that employees feel free to report their illnesses or injuries.
Some measures that it mentions include an incentive program that rewards employees for identifying unsafe conditions, a training program for all employees to reinforce the rights and responsibilities of reporting as well as emphasizing the non-retaliation policy, and a mechanism for accurately evaluating employees willingness to report injuries and illnesses.
One way to make sure that employees feel comfortable reporting an incident is through a hotline, because it allows anonymity for everyone who wishes to report an incident without having to go to a manager during work hours to report the incident. This can help make sure that employees feel that they will not be retaliated against for reporting a work-related illness or injury.
The article goes on to say that most instances of workplace drug testing are permissible. Companies can test randomly, under a state worker’s compensation law, under other federal law, to evaluate the root cause of a workplace incident that could have harmed or did harm employees and can test for reasons unrelated to the reporting of work-related injury or illness. The only caveat is that if employers choose to use drug testing to see if drugs had anything to do with a workplace incident that could have harmed employees, they must test all employees who could have contributed to the incident.
It would be smart for all employers to review and update their policies and programs for safety incentives and drug testing to make sure that they still comply with the new guidance that OSHA has published. They should also inform their employees of the changes so that nobody is taken by surprise.