OSHA Memorandum Clarifies Workplace Safety Incentive Programs
Posted: November 01, 2018
The Occupational Safety and Health Administration (OSHA) issued a memorandum on October 11, 2018, providing clarification on implementing a workplace safety and health incentive program. The memorandum provides continued guidance in the event a post-incident drug test occurs in the workplace.
2016 Final RulingBack in May of 2016, OSHA published a final ruling on post-incident drug testing in the workplace that was enforced in December of 2016. Their goal was to improve the tracking of workplace injuries and illnesses. The intent of the ruling is to better protect individuals from being discharged or discriminated against by an employer for reporting any fatality, injury or illness.
New OSHA Memorandum to the Final RulingNow, the recent OSHA memorandum aims to provide some clarity around the final ruling that was enforced in December of 2016. Employers who have implemented incentive programs and post-incident drug testing must show they have a safe, healthy workplace. The only way an employer would violate the ruling – 29 C.F.R 1904.35 (b)(1)(iv) – is if they penalize an employee for reporting a work-related injury or illness. Under the most recent rule, OSHA does not need to receive an employee complaint in order to investigate a retaliation claim. Previously, OSHA could only investigate a potential case of retaliation if a complaint was filed within 30 days of the alleged retaliation. Additionally, the new OSHA memorandum outlines parameters for electronic submission of injury and illness information that employers must document. Generally, the documentation requirement will vary depending on the size of the organization. More importantly, the final rule does not prohibit employers from drug testing employees. However, OSHA highlights that drug testing (or even the threat of drug testing) that is retaliatory in nature, or appears to be, is prohibited. OSHA’s stance is that employers who drug test in accordance with federal or state law or regulation do so without the motive of retaliation.
Examples of an Active Incentive ProgramSo, what exactly is an incentive program that promotes workplace safety and health? Here are some examples:
- An organization creates an incentive program to reward employees for reporting near-misses and encourages involvement in a safety-conscious, healthy company.
- An organization structures a incentive-based program that focuses on the overall decrease of reported incidents and illnesses. The incentives could involve bonuses, prizes, perks, etc.