What's Old is New Again: OSHA Reiterates - Tests & Enticements are OK
Monday, November 5, 2018
Posted by: Alyce Ryan
Written by:Christine V. Walters, JD, MAS, SHRM-SCP, SPHR , FiveL Company
In early 2017, I was presenting at a conference and was, shall we say, heckled from the audience. An attendee was rather vocal and adamant that OSHA's final rule, which took effect January 1, 2017 prohibited employers from have a mandatory, post-accident testing policy. We respectfully agreed to disagree.
The 2017 final rule expressly read, "...this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing 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."
Apparently, that audience participant was not the only person who interpreted that rule differently than I. On October 11th, OSHA published a Memorandum, reiterating that mandatory testing policies or programs, as well as those that offer incentives do not violate the law. "The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing." (emphasis added) So, if your team is accident free for a month or a quarter and you want to reward them, it's OK! If you want to enforce a post-accident testing program, it's OK. Just use reasonable discretion and ensure the testing and awards help avoid accidents, rather than avoid the reporting of accidents or safety hazards.
Another tip: OSHA also recommends employers implement, "a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy."