Reversing a 2016 rule change, the Occupational Safety and Health Administration (OSHA) will no longer consider most safety incentive programs and post-incident drug testing policies to be retaliatory and unlawful.
Under a new Standard Interpretation, OSHA said the U.S. Department of Labor “believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.”
The law firm Jackson Lewis, NJBIA’s HR hotline provider, says the change means the agency no longer prohibits employers from tying a portion of supervisors’ bonuses to the number of recordable injuries under their watch.
“The new guidance clarifies that safety incentive programs are retaliatory and unlawful only if they seek ‘to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health,’” attorneys Tressi Cordaro and Kathryn Russo write.
The new interpretation also allows for drug testing employees involved in a safety incident without first determining if there is a “reasonable possibility” that drugs or alcohol were a factor. Cordaro and Russo note, however, that employers who choose such a policy should make sure they test everyone, not just those who report the incident. “Broad post-accident drug and alcohol testing is permitted (subject to applicable laws that may impose specific requirements or restrictions) as long as all employees whose conduct could have contributed to the accident are tested,” they write.