The Occupational Safety and Health Administration is responsible for ensuring safe and healthy workplaces, and it requires employers to record workplace injuries and illnesses. To comply with OSHA safety regulations, and to reduce the cost of employee injuries and illnesses, employers have implemented practices such as safety incentive programs and drug testing. OSHA has expressed concern that such practices could have the unintended consequence of discouraging employee reporting of illnesses and injuries, and possibly lead to retaliation against employees who make reports.
In 2016, OSHA issued a new rule prohibiting employers from using a drug test as a way to retaliate against workers who report injuries or illnesses. This anti-retaliation rule does not, however, prohibit the drug testing of employees outright. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be considered retaliatory.
Despite its finding that employee drug testing to comply with a state or federal law is not retaliatory, OSHA indicated that some drug testing and safety incentive policies would still have the effect of keeping employees from reporting work injuries, and would therefore be a violation of OSHA regulations. In 2018, OSHA issued a memo clarifying this position. The memo indicates OSHA's belief that many employers who use drug testing and incentive programs do so to promote safety and health. Furthermore, the memo stated, "evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety."
OSHA named several drug testing methodologies that would not be violations of its requirements, including
- random drug testing,
- drug testing unrelated to the reporting of a workplace injury or illness,
- drug testing under a state workers' compensation law or federal law, and
- drug testing to determine the cause of an event that hurt or could have hurt employees.
The memo stated that programs for reporting near misses or hazards as well as health management systems are acceptable. It also indicated that rate-based incentive programs are appropriate under the regulations, so long as they do not operate in a way that discourages reporting. For example, withholding a prize or a bonus because of a reported injury would be acceptable, "as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness."
OSHA then suggested ways to counterbalance any incentive program's potential to chill reporting by also providing incentives for reporting unsafe conditions, instituting training to reinforce reporting rights and an evaluation process for determining employee's willingness to report injuries.
Find the OSHA guidance on workplace safety programs and drug testing at https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11.