OSHA is delaying enforcement of a final rule prohibiting employers from retaliating against employees who self-report work-related injuries and illnesses, but only until December 1, 2016.
This leaves just a small window of opportunity for employers to complete their review and assessment of whether their workplace injury reporting procedures and other policies comply with the final rule.
Are Safety Incentive Plans Permissible?
The final rule addresses two key issues for employers, the first being workplace safety incentive plans that may discourage employees from reporting injuries. Safety incentive plans can take many forms (e.g. monetary bonuses, raffle drawings for prizes, or other incentives) with the goal of rewarding employees for having an injury-free workplace. However, OSHA believes that these types of programs may actually discourage employees from reporting work-related injuries in order to remain eligible for the incentives.
The final rule does not expressly prohibit safety incentive programs, but requires any such programs to be structured to encourage safety in the workplace without discouraging the reporting of workplace injuries. The question for employers is whether a particular program constitutes a material benefit and whether the disqualification from any such program would dissuade an employee from reporting an injury.
What About Post-Injury Drug Tests?
The second key issue is OSHA’s contention that all-encompassing post-injury drug testing policies dissuade employees from self-reporting and therefore violate the new anti-retaliation provisions. OSHA does not outright ban post-accident drug testing when an employee self-reports, but instead states that such testing should be limited to situations “in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”
As an example, an employee with carpel tunnel syndrome would not necessitate a drug test for reporting hand or wrist pain on the job, but the worker who drives a fork lift into a wall would certainly warrant testing. Employers need not specifically suspect drug use, but there needs to be a reasonable possibility that drug use was a contributing factor to the workplace injury.
The final rule arguably only applies to situations where an employee self-reports an injury or illness, and does not apply when the employer initiates the test due to a reasonable basis to believe the employee is under the influence of drugs or alcohol. Also, the final rule does not prohibit employers from mandatory drug testing if required under federal or state law, such as DOT regulations.
Minnesota employers who utilize drug tests must also make sure their policies comply with the Minnesota Drug and Alcohol Testing the in the Workplace Act (“DATWA”), which also establishes very specific situations where an employee can be required to submit to a drug and alcohol test. Extreme care must be applied here because OSHA’s new rule appears to require that drug tests under these circumstances demonstrate that the tested employee was impaired by drug use. The Minnesota statute, on the other hand, requires only that the test determine the presence of the drug. This conflict could cause a Minnesota employer to violate OSHA’s new rule even though the drug test conforms entirely with the state law.
Bottom Line
If you have not done so already, you still have a little time to review your accident reporting policies and post-injury policies to determine if they comply with the new OSHA rule. Given the complexity and fact-intensive nature of these issues, employers who drug test or have safety incentive plans should consult legal counsel to determine whether any such policies comply or run afoul of these new rules.