OSHA: Retaliation Rule Does Not Prohibit Incentive Programs, Drug Testing
OSHA’s 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, according to a memorandum released by the agency on Oct. 11. The memo states that action taken under a safety incentive program or post-incident drug testing policy would only violate the OSHA rule “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.” OSHA’s memo describes incentive programs as important tools to promote workplace safety and health. But other stakeholders have expressed concerns that incentive programs may discourage workers from reporting injuries and illnesses. A 2012 report published by the Government Accountability Office found that rate-based safety incentive programs, which reward workers for achieving low rates of reported injuries or illnesses, may discourage reporting of injuries and illnesses. GAO’s report further stated that policies such as post-incident drug and alcohol testing may also discourage reporting. OSHA’s memo states that rate-based incentive programs are permissible “as long as they are not implemented in a manner that discourages reporting.” The agency says it will not cite an employer who takes a negative action against an employee under a rate-based incentive program—withholding a prize or a bonus due to a reported injury, for example—“as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.”  The agency also lists several instances of workplace drug testing that are permissible under its regulations.  The full memo is available on OSHA's website. To read the GAO report, visit GAO's website.