OSHA issued a memorandum on Oct. 11 clarifying the agency's position that its rule prohibiting employer retaliation against employees for reporting work-related injuries or illnesses does not prohibit workplace safety incentive programs or post-incident drug testing.
Some forms of these programs—such as incentive programs that reward employees with bonuses or prizes if no employee has been injured over a specified period of time—have come under scrutiny from OSHA in the past because of their potential for creating disincentives to report injuries.
The rule at the center of OSHA's latest memorandum—Section 1904.35(b)(1)(iv) of the Obama era Electronic Recordkeeping Rule—states that employers “must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”
In its memorandum, OSHA says that it believes many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health.
Action taken under a safety incentive program or post-incident drug testing policy would violate OSHA's anti-retaliation rule, says the agency, 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 workplace safety and health."