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The U.S. Occupational Safety and Health Administration issued a new memorandum clarifying that the agency’s electronic record-keeping rule does not prohibit employers from establishing workplace safety incentive programs or post-incident drug testing.
The agency “believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health,” OSHA officials said in the memorandum sent to the agency’s regional administrators on Thursday. “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 the anti-retaliation provisions of the electronic record-keeping rule “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 stated.
OSHA’s Improve Tracking of Workplace Injuries and Illnesses regulation, otherwise known as the electronic record-keeping rule, was a source of consternation for employers and their representatives in large part because of the anti-retaliation provisions. It did not ban drug testing of employees, but prohibited employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses, according to the final rule, published in 2016.
Similarly, employers objected to OSHA’s strong stance against using incentives in workplace safety programs, which they considered a valuable tool to encourage employees to follow safety and health rules in the workforce, established during the Obama administration.
“Incentive programs can be an important tool to promote workplace safety and health,” Thursday’s memo stated. “One type of incentive program rewards workers for reporting near-misses or hazards and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible under (the regulation). Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible under (the regulation) as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under (the regulation) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”
Regional Administrators shall enforce the regulation in a manner consistent with this memorandum and shall consult OSHA’s Directorate of Enforcement Programs before issuing any citations under this provision related to workplace safety incentive programs or post-incident drug testing, according to the memo, which supersedes previous guidance on the issue.
The U.S. Occupational Safety and Health Administration may pull back on requiring employers to electronically submit certain injury and illness reports amid privacy concerns.