OSHA Provides Further Interpretation on Drug Testing and Incentive Programs

Miller & Martin PLLC Blog | October 26, 2018

OSHA recently provided further interpretation on prior interpretations regarding drug testing and incentive programs.

Earlier this month OSHA issued a memorandum to its regional advisers and state designees through the acting director of enforcement programs clarifying OSHA’s position on workplace safety incentive programs and post-injury drug testing. OSHA issued the new memorandum to clarify its prior interpretations of CFR 1904.35(b)(1)(IV) that the department does not prohibit workplace safety incentive programs or postings and drug testing.

Workplace Safety Incentive Programs

OSHA has always been in favor of positive action regarding workplace safety. Positive actions that reward employees for reporting near misses or hazards and encourages employee involvement in the overall safety have always been permissible and are highly encouraged by OSHA. However, incentives that focus on reducing the number of reported injuries and illnesses, such as programs that provide bonuses or prizes if there are no reports of work injuries have been subject to scrutiny.

OSHA has issued this memorandum to clarify that these types of incentive programs are permissible as long as they are not implemented in such a manner that discourages reporting of workplace injuries and illnesses. In order to avoid an OSHA citation for these programs, the employer must be able to show that it has implemented adequate precautions to insure that employees feel free to report injuries or illnesses. Negative action taken against an employee under one of these negative-based programs still may call into question employer conduct.

Workplace Drug Testing

OSHA wanted to clarify that most workplace drug testing is permissible under CFR 1904.35(b)(1)(IV). Importantly, random drug testing and drug testing under the state workers’ compensation law have been clarified as permissible drug testing pursuant to the CFR regulation.

Sometime, a little clarification from OSHA goes a long way. With respect to the drug testing clarification this information is incredibly useful for employers. With regard to the safety program clarification, while the clarification is good, how this actually changes the practice remains to be seen.

If you have any questions regarding the new OSHA regulations, feel free to contact us.

Tags: OSHA, Drug Testing, Workplace Safety Incentive Programs