OSHA’s New Rules on Retaliation Incentive Programs, Post-Incident Drug Testing and Disciplinary Programs

need to determine whether or not their safety incentive programs, as well as their
post-accident drug and alcohol testing programs and disciplinary program,
comply with OSHA’s new requirements.

In May 2016,
OSHA published a final rule that updated requirements for reporting
work-related injuries and illnesses, which also included a new provision that specifically
addressed retaliation for reporting incidents. Subsequently, OSHA released a
memo providing guidance on how to comply with the various requirements found in
the final rule. The memo addresses an employer’s obligation to have “reasonable
procedures” in place for employees to report injuries and illnesses without the
fear of retaliation.

anti-retaliation section, which is one of the most important for employers to
understand, describes what OSHA will consider a violation when looking at the
overall reporting program—especially in determining if there is a potential for
retaliation against employees who report incidents (for example, withholding a
benefit—such as a cash prize drawing or other substantial award—simply because
of a reported injury or illness). The
rule doesn’t prohibit incentive programs. 

However, employers cannot create
incentive programs that deter or discourage any employee from reporting an
injury or illness.

Safety Incentive Programs

Incentive programs should encourage safe work practices and
promote worker participation in safety-related activities. Not only will these
types of incentive programs comply with OSHA, but they will also be more
effective in encouraging safe behavior, thereby reducing the number of injuries.
Some examples of behaviors that can be rewarded with an effective incentive
programs include:
  •  Participation
    in safety program activities and evaluations;
  • Completion
    of safety and health training;     
  • Reporting
    and responding to hazards and close calls/near misses; 
  • Safety
    walk-throughs and identification of potential safety hazards;
  • Compliance
    with planned preventive maintenance schedules;
  • Following workplace
    safety rules.

The key to an effective
safety incentive program is to reward safe behavior rather than the lack of an
injury. A positive way of accomplishing this is by setting up a program that will
provide a cash prize for each work group that goes an entire month with all
members of the work group complying with specific safety rules, such as wearing
required fall protection. Supervisors of each work group should be rewarded as
well. Rewards should be at least every 6 weeks, and can build up to a year-long
grand prize.

If an employer does set up
such an incentive program, what happens if an employee sustains a lost-time
injury by falling off a platform while not wearing the required fall protection
and he reports the injury to the employer?  The employer can then cancel the cash prize
drawing for that specific work group that month because the employee failed to
wear the required fall protection, NOT because he was injured. However, there
must be an active incentive program in place and the employer must be actively
monitoring for compliance. Employees cannot receive the reward when they do not
use the fall protection, regardless of whether or not an injury occurred.

Post-Incident Drug Testing

The OSHA rule does not prohibit drug testing of employees, including drug
testing required by the Department of Transportation rules or any other federal
or state law
. It only
prohibits employers from using drug testing, or the threat of drug testing, to
retaliate against an employee for reporting an injury or illness.

Employers can
conduct post-incident drug testing if there is a “reasonable possibility” that employee drug use could have
contributed to the reported injury or illness. However, if employee drug use
could not have contributed to the injury or illness, post-incident drug testing
would likely only discourage reporting without contributing to the employer’s
understanding of why the injury occurred. Drug testing under these conditions
could be considered retaliation.

For example,
if an employee reports a repetitive strain injury and the employer requires
post-incident drug testing, then that testing would be prohibited because it is
unlikely that a repetitive strain injury would be related to drug use by the
employee. In a different situation, it would be reasonable for an employer to
require post-incident drug testing for a worker who reported an injury while
operating a forklift if the employee’s conduct contributed to the injury.
Employers do not need to specifically suspect drug use before post-incident
testing, but there should be a “reasonable”
possibility that drug use by the reporting employee could have contributed to
the reported injury or illness. Prior to any drug/alcohol testing a company
policy must be in place and administered uniformly.

Disciplinary Program

Employers cannot use disciplinary
action, or the threat of disciplinary action, to retaliate against an employee
for reporting an injury or illness.
The rule prohibits disciplining
employees simply because they report work-related injuries or illnesses without
regard to the circumstances of the injuries or illnesses, such as automatically
suspending workers who report an injury. The rule also does not allow disciplining
an employee who reports a work-related injury or illness by stating that
the employee violated a work rule if the real reason for the discipline was the
reporting of an injury. For example, if an employer disciplines an employee who
reported a work-related injury for violating a work rule, but fails to enforce
the work rule against other employees who violate the same rule but do not
report an injury. It is the same as described in the safety incentive program
The most common time this type of
retaliation is seen is when an employer disciplines an employee who reported an
injury or illness for violating a vague rule such as “work carefully”
or “paying attention.” In this example, the reported injury or illness
is often the only basis for disciplining the employee. A rule of thumb to
follow is if the employee had not reported the injury or illness, would the
employer have still disciplined the employee? 
If not, then the employer cannot discipline them if they report an

Effective and legitimate
workplace safety programs should treat all workers who violate safety rules in
an equivalent manner, regardless of whether or not the violation resulted in
the worker reporting an injury or illness. On the other hand, employees who
follow the rules should be rewarded fairly and equally as well.