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Posted on NOV 19, 2018

The Impact of OSHA's About-Face on Post-Incident Drug Testing Policies

Employers who've avoided post‐incident drug testing and workplace safety incentive programs for fear of violating OSHA regulations are now more empowered to put such programs into place.

In May 2016, OSHA issued its final rule regarding injury and accident recordkeeping regulations (29 CFR 1904). Subsequent policy guidance indicated that post‐incident drug testing and safety incentive programs would violate the rule's prohibition of retaliation against employees who report workplace accidents and injuries. However, in a recent memorandum, OSHA has announced that it does not prohibit those programs.*

Drug testing under the new policy

Prior to the clarification, if an employee under the influence of alcohol, illegal drugs or prescription drugs (without giving prior notice to the employer) was involved in a workplace incident, the employer could be accused of retaliatory action if it insisted the employee take a drug test following the incident

“Employers faced a ‘catch 22’ situation,” says David Manke, Vice President, Loss Control Manager, Johnson Financial Group. “OSHA wants a safe and healthy workplace—which common sense suggests a drug‐free workplace—but it was tying employers' hands by restricting post‐incident drug testing. The new guidance gives employers more leeway, but they still need to be mindful of how policies are implemented.”

For example, a policy that uses subjective decision‐making to determine whether an incident is serious or suspicious enough to warrant drug testing could be considered retaliatory. “However, a policy that calls for 100 percent post‐incident drug testing—every involved employee gets tested after every incident—demonstrates that safety, not retaliation, is the employer's goal, and likely would not violate the rule,” Manke says.

There is also a financial component to consider. Under Wisconsin's worker's compensation law, if an injured employee is impaired and that impairment is directly related to the nature of the workplace injury, he or she is not paid for time off work resulting from the injury. “Without post‐incident drug testing, employers could not prove an impairment and thus were on the hook for worker's compensation,” Manke says. “On the flip side, if an employee's test turns out negative, he or she has a better argument for receiving worker's comp, so it affects both sides.”

Creating compliant safety incentive programs

OSHA has also clarified its position on safety incentive programs. Original guidance suggested these programs discouraged reporting because employees would fear losing a reward for themselves or their group if they spoke up. OSHA's current position is that these programs are permitted as long as “they are not implemented in a manner that discourages reporting.”*

Here are some tips to help ensure your program complies:

  • Keep the safety message in the forefront. Through training and regular communication, make it clear that maintaining a safe workplace, not punishment, is the ultimate goal.
  • Create an incentive program that rewards employees for reporting potentially unsafe conditions. “Use the program in a proactive rather than reactive way,” Manke says.
  • Make sure safety incentive rewards for managers and supervisors do not discourage reporting with a process that ensures information is passed along. “Otherwise, it might be tempting for a supervisor to sit on an incident report if it would affect his or her own reward,” Manke explains.
  • Report results to employees and thank them for their successes in creating a safer workplace.

Act now to implement safety initiatives

“OSHA's turnabout is an opportunity for employers to implement valuable workplace safety programs, especially 100 percent post‐incident drug testing,” Manke says. “Creating policies and programs that foster a safer workplace is in everyone's best interests.”

If you'd like to learn more about OSHA training and accident prevention, contact your Johnson Financial Group advisor or find one in your area today.

*Source: OSHA memorandum, Oct. 11, 2018, regarding its position on 29 CFR § 1904.35(b)(1)(iv).