Hunton Employment & Labor Perspectives

A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016.  This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.

With regard to safety incentive programs (e.g., bonuses or awards to employees for limited work injuries), OSHA reasoned in the recordkeeping rule that such programs would incentivize employees not to report work-related injuries so that the award would not be lost. This rule attempted to codify the infamous 2012 “Fairfax Memo,” wherein Richard Fairfax—the then Deputy Secretary of OSHA—announced that the agency viewed safety incentive programs as potentially retaliatory in nature. Similarly, the agency reasoned in the 2016 recordkeeping rule that blanket post-accident drug testing policies could also deter employees from reporting injuries out of fear of being subjected to drug testing.

The October 11, 2018 memorandum effectively rescinds the “Fairfax Memo” view of incentive programs and the interpretative guidance associated with the 2016 recordkeeping rule regarding post-accident drug testing policies. The memorandum indicates that “[t]he Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.” This new stance, coupled with the guidance provided in the memorandum regarding the lawful implementation of these policies and procedures, provides employers with much needed guidance on these important issues.

In light of this new policy, employers may reinstate safety incentive programs without running afoul of OSHA. While the memorandum indicates that such programs are permissible, it encourages employers to implement the following to safeguard against any potential effects that could deter  reporting:

• an incentive program that rewards employees for identifying unsafe conditions in the workplace;
• a training program for all employees to reinforce reporting rights and responsibilities and emphasizes employer’s non-retaliation policy; and
• a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

Employers who choose to reinstate safety incentive programs should consider instituting these safeguards.

The memorandum also indicates that drug testing is permissible in the following circumstances:

• 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;
• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees; and
• If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Of course, employers who actually use drug testing as a way to penalize employees for reporting work-related injuries will still be vulnerable to OSHA retaliation claims.  Employers also remain vulnerable to such claims if they, for example, take adverse action against the employee whose accident ruined a perfect safety record.  The change here is that OSHA has returned to a logical interpretation of what is – and is not – retaliation.