OSHA Clarifies Position on Post-Incident Drug Testing and Workplace Safety Incentive Programs

OSHA (1).png

A 2016 OSHA final rule that requires construction companies to submit electronic injury and illness data on a yearly basis has been fraught with controversy since its release. Over the summer, OSHA proposed rollbacks on additional requirements that large companies with 250 or more employees had to follow after industry pushback.  Most recently, the administration has clarified their position on post-incident drug testing and workplace incentive programs, which many organizations believed was unclear under the final rule.

In the original final rule, found in 29 C.F.R. § 1904.35, OSHA deemed that certain post-incident drug testing and workplace safety incentive programs could end up being unlawfully retaliatory against their employees.  The belief was that, if done the incorrect way, those policies could end up discouraging incidents from being reported due to an employee’s fear of punishment.

Industry groups, including ABC, have long fought against that line of thinking, explaining that, without proper clarification from OSHA, the rule could make jobsites much less safe.  On October 11, OSHA issued an official memorandum which explains that the Department does not prohibit workplace safety incentive programs or post-incident drug testing. 

Per the memorandum, “The 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. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

With regards to safety based incentive programs, OSHA states that incentive program rewards for reporting hazards and near misses is always permissible.  For incident rate based incentive programs which award a prize or bonus at the end of the time frame, the employer has to create an environment that does not discourage employees from reporting incidents. The Department offered suggestions for counterbalancing any negative effects a rate based incentive could cause:

  • 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 the employer’s non-retaliation policy;

  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

OSHA also mentions that most instances of drug testing are permissible under 1904.35(b)(1)(iv), including:

  • 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.  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.

Full story: Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv) | US DOL

OSHA Proposes Rule to Alter, Enforce Long Delayed Crane Operator Qualifications

Last November, OSHA issued a final rule that would finally allow them to enforce language, which has been in their standards since 2010, requiring construction crane operators to be formally qualified to operate the equipment.  The first day of enforcement for that rule had been set for November 10, 2018, but the agency has recently proposed a new rule that would pull back some of the initial requirements.

Read More

OSHA Enforcement of New Beryllium Exposure Standard is Now in Effect for Construction Industry

In March, OSHA announced that they would be enforcing their previously delayed beryllium exposure limit for the construction industry on May 11, 2018.  The agency has recently confirmed that enforcement date in a memorandum on May 9, 2018.

Read More

Report: First 6 Months OSHA Silica Regulations Yields 116 Violations

OSHA newer and more stringent regulations regarding employee’s exposure to respirable crystalline silica officially went into effect on September 23, 2017.  The new reduced the permissible exposure limit of the substance, which is found mostly in products containing sand (like concrete, mortar, and brick), from 250 micrograms per cubic meter of air down to 50 micrograms per cubic meter of air averaged over an 8 hour shift.

Read More

OSHA: Majority of Companies Failed to Submit OSHA 300A Log Before Deadline

If your company did not electronically submitted its 2016 OSHA 300A injury and illness log to OSHA before December 31, 2017, they could be facing an other-than-serious violation with a maximum penalty of $12,934. We tried to warn you, and warn you, and warn you again.

Read More

OSHA Sets Enforcement Date for New Beryllium Exposure Limit in Construction

First announced in January 2017, OSHA’s new beryllium exposure limit for construction workers was originally supposed to be in full effect on March 12, 2018.  The administration just announced last Friday that the new enforcement date for the rule will be May 11, 2018.

Read More

Reminder: Employers Must Post 2017 Injury and Illness Summary by February 1

OSHA gives employees many rights in the workplace and employers many responsibilities.  One of those is the employee’s right to see the company’s OSHA 300 Injury and Illness Summary Log and the employer’s responsibility to post it.

Read More

OSHA Sets Penalty Increase Amount for 2018

When OSHA raised its citation penalty amounts for the first time since 1990 in 2016, it raised them 78% to catch up with inflation over that many years.  It wasn’t just a one time increase, however, as the amended Federal Civil Penalties Inflation Adjustment Act of 1990 no longer exempts OSHA from its requirements.

Read More