Many employers have implemented workplace safety incentive programs in an effort to reduce time lost to injuries or illness. The programs generally reward workers for reporting near-misses or hazards and/or reward employees with a prize or bonus at the end of an injury-free period. The programs also may evaluate managers based on their work unit's lack of injuries. Similarly, employers have implemented drug testing protocols with the same goals.
In May 2016, concerned that employers were not using incentive programs and drug testing policies to encourage safe practices but, instead, to punish employees who reported workplace safety issues, the Occupational Safety and Health Administration ("OSHA") published a final rule prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. The final rule also suggested that it might constitute retaliation for an employer to limit post-incident and post-accident drug testing to the employee who reported an injury as a result of a workplace incident/accident and not to test all of the employees involved in the incident.
Last week, OSHA's Acting Director sent a Memorandum for Regional Administrators, who are principally responsible for enforcement of safety rules and regulations, reminding them that an employer's mere use of workplace safety incentive programs and/or post-incident drug testing policies does not violate the Act. Sensing that the May 2016 rule was being interpreted as prohibiting safety incentive programs or post-incident drug testing policies, the Acting Director's new Memorandum makes it clear that action taken under a safety incentive program or post-incident testing policy would only violate the anti-retaliation provision of OSHA "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."
What does this mean for employers? The Memorandum suggests that a workforce safety incentive program containing the following elements may offset the otherwise potential negative impact of a rate-based incentive program (which might discourage reporting so that employees can earn a bonus):
- 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 to emphasize the employer's non-retaliation policy;
- A mechanism for accurately evaluating employees' willingness to report injuries and illnesses.
The Memorandum also reiterated that "most instances of workplace drug testing are permissible" under the anti-retaliation provisions of OSHA and noted that "if the employer chooses to use drug testing to investigate" the root cause of a workplace incident that harmed or could have harmed employees, it "should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries." (Emphasis added.)
As is the case with most workplace statutes, claims of retaliation by an employee (for instance, because the employee complained or reported a violation) pose a significant risk to employers. In the OSHA context, although the agency is sensitive to the fact that certain policies may discourage reporting of unsafe conditions, employers can materially lessen their risk of violations by paying attention to the points raised in the Acting Director's Memorandum.
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