OSHA Clarifies Anti-retaliation Provisions

On Oct. 11, the Occupational Safety and Health Administration issued a memorandum clarifying its position on workplace safety incentive programs and post-incident drug testing included in the 2016 final rule, Improve Tracking of Workplace Injuries and Illnesses (also known as the Electronic Injury Reporting and Anti-Retaliation final rule), issued under the Obama administration.  

The preamble of the 2016 final rule, as well as OSHA’s subsequently issued guidance, deemed some forms of post-accident drug testing and accident-free incentive programs to be unlawfully retaliatory, which could force many employers to change their safety programs in ways that will make workplaces less safe by discouraging drug testing and safety incentive programs. Enforcement of the anti-retaliation provisions went into effect on Dec. 1, 2016.  

The recently-issued OSHA memo is a positive step. ABC has long argued that the anti-retaliation provisions impose significant burdens on ABC members and threaten workplace safety. In 2016, ABC and other stakeholders filed a lawsuit against the final rule, which is currently paused.

ABC National plans to offer a webinar on the memo—details will be announced in the near future.   

The OSHA memo states:

The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. 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.

The memo also states the following about workplace drug testing:

In addition, most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv). Examples of permissible drug testing include:

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.

Further, the OSHA memo clarifies that many safety incentive programs, including rate-based incentive programs, are lawful as long as they are not implemented in a manner that discourages reporting.

Note: On Sept. 28, 2018, ABC submitted comments to OSHA on its recent proposal to remove certain provisions of the 2016 final rule. Specifically, the proposal would rescind the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. Additionally, OSHA is proposing to require covered employers to submit their Employer Identification Number electronically along with their injury and illness submission. However, despite significant opposition from ABC, OSHA’s proposal failed to make any revisions to the anti-retaliation provisions included in the 2016 final rule. More information on electronic submission of illness and injury records to OSHA can be found on the Injury Tracking Application landing page

This article is intended for informational purposes only and does not constitute legal advice or opinion.