By Robert G. Chadwick, Jr,  Partner, Freeman Mathis & Gary, LLP.

On May 12, 2016, OSHA published a final rule that, among other things, added a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. See 29 C.F.R. § 1904.35(b)(1)(iv)  The agency subsequently published guidance clarifying that certain workplace safety incentive programs and post-accident drug testing programs could deter reporting and therefore violate the new anti-retaliation rule.

On October 11, 2018, OSHA reversed course in its interpretation of the anti-retaliation rule. In a Memorandum to Regional Administrators, the agency clarified that the rule “does not prohibit workplace safety incentive programs or post-incident drug testing.”  Rather, action under a safety incentive program or post-incident drug testing policy would be unlawful only “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 safety and health.”

The Memorandum provides welcome clarification for employers which use incentive programs to promote workplace safety and health.  The Memorandum advises that an employer can avoid any inadvertent deterrent effects of  incentive program by implementing:

• “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 emphasizes the employer’s non-retaliation policy;
• a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

Employers would do well to heed such advice.

The Memorandum also clarifies that drug testing is permissible “to evaluate the root cause  of a workplace incident that harmed or could have harmed employees.” Still, the Memorandum cautions that “[i]f 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.” Employers would also do well to heed such advice, as well as be mindful that drug testing may be regulated by applicable state or local laws.