OSHA Publishes Final Rule on Incentive Programs and Drug Testing Policies

The Occupational Safety and Health Administration (OSHA) recently published a final rule (29 CFR 1904.35) revising its recordkeeping and reporting regulation to specifically state that employer policies for reporting workplace injuries and illnesses must be reasonable. Under the rule, procedures that deter or discourage employee reporting are not reasonable. As interpreted by OSHA, the new rule requires employers to look at existing policies such as mandatory post-incident drug testing and employee safety incentive plans to ensure that they do not discourage employees from reporting injuries and illnesses.

Employee Safety Incentive Programs

It would be considered a violation of 1904.35 if an employee has a safety incentive programs that is linked to reductions in employee injuries and illnesses. There is no problem with incentive programs that rewards action such as, safe behavior, safety related activities or hazard identification. The problem is when the reward is based on reducing the number of accidents for the company. This program could actually discourage employees from reporting injuries and illnesses.

Drug and Alcohol Testing

Section 1904.35(b)(1)(iv) does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as they have a reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting. Examples of injuries and illnesses where it would be unreasonable to drug test include: repetitive motion injuries, bee stings, or employee on travel is injured while riding in a taxicab. Drug Testing required by other State or Federal regulations (like CDL licensing under DOT) would be allowed since they are not the employer’s policies.