Way back in 2016 (before the election) OSHA published a pretty comprehensive rule that affected many, if not all, businesses in the US. The rule was fairly controversial initially but not for the stated purpose of the rule. The rule was the electronic reporting rule that required all large and many small companies (including cotton gins) to report their OSHA 300 data to the agency each year. Included in that rule, almost as an afterthought, were two additional rules that dealt with incentive programs and drug testing as they play a roll in timely reporting of injuries by employees.

The additional rules known as the anti-retaliation rules, initially barred employers from post accident drug testing and incentive programs. Recently OSHA has clarified the rule (almost two years from the time it was implemented) and it seems to make more sense.

INCENTIVE PROGAMS

We have used incentive programs for a long time. No accident awards or bonuses based on injury rates have been a part of manufacturing for a very long time. OSHA has backed off a bit and indicated that incentives for REPORTING unsafe conditions or near misses are encouraged. Additionally, safe season rules or bonuses can be used but only in certain circumstances. Only if the employer has a clear and consistent policy of encouraging the reporting of injuries and/or the bonus or incentive is so inconsequential that it wouldn’t make a difference can they be used. That seems like a pretty high bar but they want injuries to be reported.

DRUG TESTING

The post accident drug testing aspect of the new rule has been the most controversial part of the entire package. Initially OSHA said there could be no post accident drug testing. They backed off of that stance pretty quickly and said drug testing that was part of a state workers comp plan such as “Drug Free Workplace” or required by another governmental agency such as Department of Transportation were okay. OSHA has recently further clarified the rule in that post accident drug testing is fine as long as it is used as an investigative tool. If all employees whose actions could have led to the accident or injury, the testing is fine.

Conclusions

OSHA doesn’t want any policies or programs that employers have to discourage the timely reporting of accident or to unnecessarily test employees who would only have been tested because they got hurt by no fault of their own. It’s important that if you intend to have a policy or program for incentives or drug testing that you look at those policies in the light of whether they would discourage reporting of injuries. This will be the general test as to they are cited. As of this writing though, the rule has been in force for almost two years and there have not been any citations that I’m aware of for this part of the rule. I would expect this to show up if there are larger issues of retaliation or whistleblower situations.

The full memo outlining these clarifications can be found here.