January 29, 2019
By Hugh D. Brown & Rebecca L. Huting
Hugh Brown and Rebecca Huting are members of the firm’s Construction Law Department. Hugh can be reached at 612.359.7663 or firstname.lastname@example.org. Rebecca can be reached at 612.359.7614 or email@example.com
In an important development for employers in the construction industry, the Occupational Safety and Health Administration (OSHA) recently released a memo in October 2018 clarifying its earlier positions on workplace drug testing and safety incentive programs. With this memo, OSHA stated that rate-based incentive programs will be acceptable as long as safety is emphasized over rates, and employees feel free to report injuries. This Briefing Paper explains how these changes to OSHA’s policies affect drug testing and safety incentive programs.
In 2016, OSHA instituted rule changes that revised the Recording and Reporting Occupational Injuries and Illnesses regulation. Among other changes, the rule amended 29 C.F.R. § 1904.35 to add a provision which prohibited employers from retaliating against employees who reported work-related injuries or illnesses. Section 1904.35(b)(1)(iv) provides, “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”  The rule is somewhat vague, especially with respect to the language concerning discriminating “in any manner.” In the promulgation of this rule, OSHA discussed concerns about employers disciplining employees who reported or suffered OSHA-recordable injuries by suspending, reassigning, terminating, rendering employees ineligible for promotion, or automatically giving poor performance evaluations to employees who reported. The amended rule allowed OSHA to issue citations to employers for retaliating against who reported workplace injuries even if no employee had filed a complaint with OSHA.
Drug Testing and Incentive Programs
OSHA made it clear that safety incentive programs and drug testing were two of the primary concerns that were the impetus for promulgating § 1904.35(b)(1)(iv). OSHA discussed concerns about employer policies mandating automatic post-injury drug testing as a means to intimidate workers and discourage reporting. It stated, “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.” OSHA suggested that drug testing would be inappropriate if it were unrelated to any potential role of drug intoxication in the incident, as there should be a reasonable possibility that drug use was a contributing factor to the injury. To institute a blanket policy of drug testing after every incident irrespective of any potential role of drug intoxication would be inappropriate. 
The agency also discussed concerns about the retaliatory nature of many employee incentive programs. It discouraged incentive programs of the variety that provided monetary incentives predicated on workers remaining “injury free,” which lead to peer pressure on employees not to report. Instead, OSHA recommended employers refer to the agency’s “Voluntary Protection Program” to consider positive incentives, “including providing t-shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.”
OSHA subsequently released additional commentary in two memos published in 2016. These memos caused many employers concerns about implementing additional drug testing programs or incentive programs, perhaps because many had such policies in place. Regarding drug testing, OSHA demonstrated that it could be used as long as the employer had an objectively reasonable basis for testing, but it would be inappropriate in other circumstances. For instance, “drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury.” OSHA reiterated that administrating drug tests in a punitive manner was prohibited.
Regarding incentive programs, the agency provided an example of one that would violate § 1904.35(b)(1)(iv): an employer who raffles off a $500 gift card at the end of a month with no injuries, but cancels the raffle when there is an employee-reported injury. This would constitute adverse action by the employer against the employee simply for reporting a work-related injury.  A gift card raffle is probably (and luckily) more commonplace than what one Missouri employer did to its reporting workers. If an employee reported an injury, in addition to their coworkers forgoing monthly prizes, the injured worker had to wear a fluorescent orange vest for a week. Humiliation can have a strong deterrent effect.
OSHA’s Recent Memo
After the publication of § 1904.35(b)(1)(iv) and OSHA’s interpretive memos, many employers were concerned whether safety incentive programs were altogether banned. In October 2018, OSHA published a memo clarifying the agency’s position on workplace safety incentive programs and post-incident drug testing. OSHA emphasized that these programs are not prohibited by law as long as they are not implemented so as to penalize or discourage reporting. With regard to incentive programs, the agency suggested that a rate-based incentive program may be acceptable if it were supplemented with elements such as:
This represented a material shift from OSHA’S prior stance discouraging rate-based incentive programs. OSHA also suggested that most workplace drug testing policies would be permissible, including:
These changes appear to suggest that OSHA has backed away from its previous guidance requiring a reasonable basis to suppose drug use contributed to a safety incident before testing. Unfortunately, OSHA has not expressly said so. Employers should still be careful to avoid the appearance of retaliation or discrimination when testing after a safety incident.
There are some takeaways for employers. Employees should be treated in a consistent manner, including with drug testing policies. Employers should limit post-incident drug testing to situations in which it is likely to have contributed to an accident. Employees need to feel free to report an injury or illness without feeling burdened by the consequences of that report. As an employer, you may consider cues that could influence reporting, whether it is monetary incentive programs, or even “X days without an accident” signage. Are your incentive programs sending signals to employees that reporting injuries is not valued by the organization? Does your workplace actually value safety for the right reasons? OSHA has now taken a clearer, more permissive stance on the issue of incentive programs. It is important to remember, however, that the agency’s guidance on the rule is interpretive – the plain language of the rule is not sufficiently detailed to give employers much practical guidance. Theoretically this could be superseded at will and could change depending on the political climate. Moreover, OSHA can and will look into the facts of any given case to determine whether, in its view, an employer is acting with safety foremost in mind, or is merely trying to discourage reporting. In any event, with the recent OSHA memo release, this is the right time for employers to review their safety policies.
This article is a general discussion only and does not constitute legal advice or representation.
Dean Thomson will be speaking at the American Bar Association Forum on Construction Law Mid-Winter meeting on Legal Ethics in Construction in Los Angeles on February 1st, 11:30 -12:30 at the Millennium Biltmore Hotel.
For more information go to https://www.americanbar.org/groups/construction_industry/
FWHT gives back on MLK Day 2019 – Fabyanske, Westra, Hart, and Thomson employees and family members volunteered their time to participate in Second Harvest’s Bring Your Child to Serve Day.
 The final rule became effective on January 1, 2017, except for §§ 1904.35 and 1904.36, which became effective on August 10, 2016. See Improve Tracking of Workplace Injuries and Illnesses, 81 FR 29624-01 at *29624 (May 12, 2016).
 See 29 C.F.R. § 1904.35(b)(1)(iv).
 Improve Tracking of Workplace Injuries and Illnesses, 81 FR 29624-01 at *29672 (May 12, 2016).
 Id. at *29671.
 Id. at *29673.
 Id. at *29674.
 OSHA Memorandum re: Interpretation of 1904.35(b)(1)(i) and (iv) (October 19, 2016).
 Id. In the second memo, OSHA communicated that the penalty for a violation of section 1904.35(b)(1)(iv) may be up to $12,471. See OSHA Memorandum re: Interim Enforcement Procedures for New Recordkeeping Requirements under 29 CFR 1904.35 (November 10, 2016).
 Nancy Lessin, Confronting Blame-the-Worker Safety Programs, Labor Notes (May 19, 2010), http://labornotes.org/2010/05/confronting-blame-worker-safety-programs.
 OSHA Memorandum re: Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv) (October 11, 2019 ).
This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2019 FWH&T