OSHA’s New Rules Addressing Safety Incentive Programs and Drug Testing

On January 1st new Federal OSHA rules took effect regarding reporting work-related injuries and illnesses and enhanced requirements for employers to ensure that employee incentive programs and drug testing policies do not discourage workers from reporting injuries and illnesses.  While the new rules do not currently apply to state run programs like Cal/OSHA, individual state-run programs must adopt rules and regulations, at least as stringent as Federal OSHA, within six-months.  The new OSHA rules require certain employers to electronically submit their yearly work-related injury and illness data to an OSHA database.  In theory, OSHA will use this data to better track injuries and illnesses.  In addition, the new rules clarify requirements that safety incentive programs must be designed so that they do not discourage workers from reporting work-related injury or illnesses.  Employee incentive programs have always been difficult for Safety Professionals to design and these new rules will make the process more difficult.

Another issue addressed in the new rules is drug testing of employees following work-related injuries or illnesses.  Employers are not allowed to use drug testing, or threat of drug testing, as a form of retaliation against workers who report injuries or illnesses.  OSHA is directing that drug testing may be done in response to injuries or illnesses where drug use or intoxication could be linked as a cause of the incident but not as a blanket response policy following a report of injuries or illnesses, unless drug testing is required by other regulations.  For example, if an employee was injured due to equipment malfunction and not operator error, OSHA is contending that requiring drug testing may result in the worker not reporting the injury or illness due to fear of not passing a drug test.  We will follow-up with more details in our next newsletter.