Steve Matzura

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The Occupational Safety and Health Administration (OSHA) has rolled back Obama-era guidance on safety incentive programs and post-accident drug testing. OSHA has a rule prohibiting employer retaliation against employees for reporting work-related injuries or illness. In its latest guidance (a memorandum published October 11, 2018), OSHA clarified that workplace safety incentive programs and post-accident drug testing do not violate that anti-retaliation rule. This differs from OSHA’s approach in previous guidance, where OSHA took the position that, in some circumstances, safety incentive policies and post-accident drug and alcohol testing could be a retaliatory practice for deterring employees from reporting work-related injuries and illnesses. OSHA has changed its course, but the latest guidance is still not a model of clarity.

Specifically, OSHA most recently stated that most incentive programs and instances of workplace drug testing are permissible. However, OSHA warned that such programs can be unlawful and retaliatory if they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” The new guidance supersedes any other interpretive documents, to the extent they are inconsistent.

Safety Incentive Programs

OSHA clarified and reinforced that incentive programs can be an important tool to promote workplace safety and health. Positive programs, such as those that reward workers for reporting near-misses or hazards or encourage involvement in a safety and health management system, are always permissible, according to the memorandum.

However, the line is less clear regarding rate-based incentive programs (e.g., rewards with a prize/bonus for an injury-free month) and negative action against an employee (e.g., withholding a prize/bonus because of a reported injury). OSHA’s position is that rate-based incentive programs are permissible so long as they are not implemented in a manner that discourages reporting. OSHA claims it would not cite the employer if the employer has implemented “adequate precautions” to ensure that employees feel that they are free to report an injury or illness. The question becomes whether the employer has “adequate precautions” to counterbalance any inadvertent deterrent effect under a rate-based incentive program.

Workplace Drug Testing

OSHA has provided more definitive guidance for drug testing. The following will be deemed permissible:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.

OSHA has clarified that if an employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just the employee(s) who reported injuries.

The attorneys of the McNees Labor & Employment Group are ready to assist your Company with developing OSHA-compliant safety incentives and drug testing policies.

In March 2016, OSHA published its standards for respirable crystalline silica in general industry/maritime (29 C.F.R. § 1910.1053) and in construction (§ 1926.1153), both of which have been phased in.  OSHA has been enforcing the construction standard for about a year (since September 23, 2017), and this summer the standard for general industry/maritime became enforceable (as of June 23, 2018).  Employees in general industry can be exposed to small silica particles during manufacturing (e.g., glass, pottery, ceramics, brick, concrete, and artificial stone) and during other non-construction activities that use sand (e.g., abrasive blasting and foundry operations).   Employers who are involved in such activities, or in construction work, may be affected by the silica standards.

Consequences of noncompliance are serious for employers, not only in terms of potential health risks to their employees, but also risks of enforcement actions by OSHA (and states with OSHA-approved programs).  OSHA has been conservative and generally modest in penalties issued to date, but that is likely to change.  For example, in August 2018, a construction company was cited for violations of the silica construction standard, with a proposed penalty of over $300,000.  Employers in construction and, now, general industry, should heed this warning as a sign of things to come.

Although the two silica standards differ in certain respects, both generally require employers to develop a written exposure control plan, perform an exposure assessment and periodic monitoring, implement feasible engineering and work practice controls, ensure respiratory protection and medical surveillance where necessary, comply with housekeeping measures, and maintain recordkeeping.  The general industry standard also requires demarcation of regulated areas.  It is important that silica hazards are incorporated into an employer’s hazard communication program, as the OSHA Hazard Communication Standard is also incorporated by reference and expanded upon in the silica standards.

Both standards are now subject to enforcement, except for some general industry/maritime requirements for employees exposed at or above the action level, and some requirements for hydraulic fracturing operations in the oil and gas industry.  For enforcement of the general industry/maritime standard, OSHA gave employers an additional 30-day grace period (until July 23, 2018), as long as they were making good-faith efforts to comply.  But the time has come for compliance, inspections, and enforcement.

Employers should be prepared accordingly, consider how to handle an inspection, and consult OSHA’s guidance.  OSHA recently issued various compliance materials on its general industry/maritime webpage, including interim enforcement guidance.  Additional resources  added by OSHA to its construction work webpage include a slide presentation for training construction workers, a five-minute video on protecting workers, a series of short videos for various construction tasks, and an FAQ page.

Even with these compliance materials, the silica standards can be complex and difficult to implement in a practical manner.  Employers should consult professionals to ensure compliance and mitigate any enforcement actions that may arise.

On November 28, 2016, a federal district court issued an order that allowed OSHA to move forward with implementation of its controversial standards related to mandatory post-accident drug testing programs and incident-based employer safety incentive programs.  As McNees previously reported, OSHA delayed enforcement of these parts of its final rule, aimed to “Improve Tracking of Workplace Injuries and Illnesses” (the “Rule”), until December 1, 2016.  Absent any further developments, the Rule is set to become enforceable December 1, 2016.

However, while the Rule will become enforceable, its continued validity remains questionable.  The court’s order does not dispose of the underlying complaint that asked the court to vacate the relevant parts of the Rule, the order only denied the request for a preliminary injunction.  Another layer of uncertainty has been added since Donald Trump was elected president.  President-elect Trump’s administration may ultimately decide to undo the relevant provisions or retreat from the prior administration’s expansive interpretations after he takes office in January 2017.  This creates a situation where employers need to comply with the controversial standards for now, but OSHA or a court may indicate otherwise in the not-so-distant future.  Further background on these provisions, OSHA’s guidance, and the ongoing litigation is provided below, with a focus on post-accident drug and alcohol testing.

The Controversial Provisions of the Rule

When OSHA issued the Rule in May 2016, the agency created an enforcement tool allowing it, for the first time, to independently cite employers if their policies for post-accident drug or alcohol testing, employee discipline, or safety incentive programs are deemed retaliatory because they discourage or deter injury reporting.  The controversial portions of OSHA’s Rule are at 29 C.F.R. § 1904.35(b), which requires employers to “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.”  A procedure is “not reasonable,” according to the Rule, “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  In conjunction with this requirement, the Rule prohibits employers from discriminating or retaliating against employees for reporting work-related injuries or illnesses.

Essentially, the Rule provides that blanket post-accident drug and alcohol testing policies will discourage injury reporting and could be retaliatory..  Drug or alcohol testing are not specifically mentioned in the text of the Rule.  However, OSHA has provided interpretations in the Rule’s preamble and guidance that establish authority to cite employers for workplace policies that OSHA deems to have discouraged reporting or otherwise to be retaliatory.  For the first time, OSHA will be able to cite an employer for retaliation even if an employee does not file a complaint.  In October 2016, OSHA posted guidance on its Rule webpage related to an Employee’s Right to Report Injuries and Illnesses Free from Retaliation, including a Memorandum for OSHA’s Regional Administrators on implementation of the guidance (together, the “Guidance”).  The Guidance confirms that OSHA’s enforcement will apply to both drug and alcohol testing, and that workplace testing policies implemented pursuant to federal or state law should not be affected.  Yet, significant uncertainty remains for employers.

Lingering Uncertainty and Next Steps for Employers

The uncertainty surrounding the Rule is twofold.  First, from a substantive perspective, implementation is not entirely clear, despite the Guidance.  Employers will be forced to grapple with competing – and potentially conflicting – obligations under OSHA’s Rule and other federal and state laws as they relate to post-accident drug and alcohol testing.  On one hand, employers who require mandatory post-accident testing through sound workplace policies may be cited if OSHA determines that drug or alcohol use was not likely to have been a contributing factor to the reported injury.  On the other hand, if employers do not require mandatory testing across the board (e.g., for all lost-time injuries), workplace incidents related to drug or alcohol use arguably may increase, and selectively choosing individuals for testing may expose employers to claims that they profiled or targeted specific workers.

Second, such substantive issues now threaten the standards’ continued validity, through both litigation and executive action.  In July 2016, several trade associations, along with a workers’ compensation insurer and its insureds, initiated the litigation described above.  The action filed in the U.S. District Court for the Northern District of Texas seeks to vacate the relevant parts of the Rule to the extent they prohibit or limit routine mandatory post-accident drug and alcohol testing programs and incident-based safety incentive programs.  The plaintiffs alleged that OSHA did not have authority to create the new enforcement tool for retaliation, and that OSHA disregarded substantial evidence supporting that routine, mandatory drug and alcohol testing actually enhances workplace safety.  In the midst of the litigation, OSHA decided to postpone enforcement until November 1, 2016 to issue the Guidance.  OSHA later agreed to further delay enforcement of the Rule until December 1, 2016, but its Guidance also urged employers to review their programs and policies to determine whether they may be deemed retaliatory with respect to injury reporting.

Now that the court has denied the plaintiffs’ request for a preliminary injunction, employers who have not consulted the OSHA Guidance and prepared for timely compliance should do so by determining whether revisions to their workplace policies are necessary.  The fate of OSHA’s approach is still in the hands of the federal district court, and, even before the court decides the merits, the Trump administration may undo the OSHA standards or interpretations issued under the Obama administration or refuse to enforce them.  Nonetheless, in the interim, employers must understand how the OSHA standards and the Guidance affect their programs.  Risks of noncompliance include potential OSHA citations, including higher penalties in effect since August 2016.

Next Steps for Employers

As noted, the Rule is effective December 1, 2016, so employers need to take steps to ensure compliance.  Need assistance?  McNees contacts that can help include: Steve Matzura, Paul Clouser, Denise Elliott, Joe Sileo and Andrew Levy.