OSHA Clarifies Its Position Regarding Post-Incident Drug Testing and Safety Incentive Programs

On October 11, 2018, the Occupational Health and Safety Administration (OSHA) issued a memorandum clarifying its position regarding safety incentive programs and post-incident drug testing.

Two years ago, in October 2016, OSHA issued a memorandum that prohibited drug testing employees who reported injuries or illness unless there was an “objectively reasonable basis” for doing so. The rationale was that blanket post-accident drug and alcohol testing violated OSHA’s anti-retaliation provisions. OSHA’s prior guidance also implied that safety incentive programs were unlawful and could create a chilling effect and deter employees from reporting work-related injuries and illnesses.

With respect to post-incident drug testing, OSHA’s most recent memorandum clarifies that “most instances of workplace drug testing are permissible.” The memo specifically includes the following as types of drug testing policies that are not violative of OSHA’s anti-retaliation provisions:

• 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 caused injury or could have caused injury to employees. In this circumstance, employers must test all the employees whose conduct could have contributed to the incident, not just employees who made reports.

With respect to safety incentive programs, OSHA’s recent memorandum acknowledges that many safety programs do, in fact, promote workplace safety and health, including rate-based safety incentive programs focused on reducing the number of work-related injuries and illnesses as well as programs rewarding employees for reporting near-misses or workplace hazards. OSHA now takes the position that 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.”

Employers should regularly review and update their safety incentive programs and drug testing policies to ensure compliance with the new OSHA guidance and business objectives, but now can be much more comfortable that legitimate safety incentive programs and post-accident drug testing policies will not result in citations.