In a move that is seen by many as a reversal of previous policy, OSHA has apparently had a change in its interpretation of certain drug testing and incentive programs by employers.
Regarding its view of employers’ post-incident drug testing programs and injury rate-based incentive programs OSHA has had a change of opinion. This change has come to light in a memorandum sent to Regional Administrators and State Designees and published October 11, in it the Agency now says most of these types of programs do not run afoul of the anti-retaliation provisions of the injury and illness recordkeeping regulation at §1904.35(b)(1)(iv).
This new policy guidance is seen as a huge shift from that which was published when the Agency issued the final rule in May 2016 requiring employers to electronically submit injury and illness records. As part of that rulemaking, OSHA added a provision that employers not have any barriers for employees to report injuries or illnesses. The rule also said that employers could not discriminate or punish employees for being injured.
In its new way of seeing things, OSHA now says that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. More specifically, the new OSHA policy goes on to state that incentive programs can be an important tool to promote workplace safety and health. One type of incentive program rewards workers for reporting near-misses or hazards and encourages involvement in a safety and health management system.
OSHA believes that statements urging employees to reporting hazards and near-misses without the threat of retaliation may not be adequate by itself. By taking positive steps to create a workplace culture that emphasizes safety, not just rates, an employer could avoid any inadvertent deterrent effects of a rate-based incentive programs.
Hopefully these changes will have a positive impact on employee wellbeing and safety.