OMA Annual Meeting 2020

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RESCHEDULED: October 21-22, 2020

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OSHA has re-interpreted its prohibition of mandatory post-accident drug testing and injury-prevention incentive programs. Previously, OSHA had completely barred them under 29 CFR 1904.35(b). Now, OSHA states that they may be permitted under limited circumstances. On October 11, 2018, OSHA issued a Memo slightly softening its position regarding workplace safety incentive programs and post-accident drug testing. That Memo supersedes OSHA’s 2016 interpretation of 29 CFR 1904.35(b) to the extent that the previous interpretation conflicts with the October 11, 2018 Memo.

Employers – before you rejoice – read the new October 11, 2018 Memo carefully. While that Memo clarifies and somewhat changes OSHA’s previous interpretation of 29 CFR 1904.35(b), OSHA still does not allow programs that punish injured workers, or that discourage employees from reporting work-related injuries and illnesses. Moreover, not much has changed with regard to post-accident drug testing. If you read the October 11, 2018 Memo, you should pay close attention to the language in the first section and we quote: “In addition, 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, not just the appearance of reducing rates.” (emphasis added).

In other words, employers need to able to show that whatever action they are taking, either with regards to a rate-based incentive program or post-accident drug testing, the ONLY goal of these programs is to develop and promote a culture of safety in the workplace.


OSHA had previously entirely banned mandatory post-accident drug testing, but now states that post-accident drug testing is permitted to “evaluate the root cause of a workplace incident that harmed or could have harmed employees.” In other words, post-accident drug testing is permitted when the root cause of an accident is in question, and drugs or alcohol could have been a contributing factor. In that case, employers may investigate the root cause by drug testing all employees involved without regard to whether they were actually injured. OSHA states that all employees who contributed to the accident should be tested – whether injured or not.

With this new guidance, OSHA does not explicitly support post-accident testing of all injured employees, regardless of the reason(s) for their injuries. If the root cause of the accident is known, and drug or alcohol use could not have reasonably been a contributing factor, post-accident drug testing may still violate 1904.35(b). Employers should not be led to believe that the October 11 memo allows them to indiscriminately drug test all injured employees if it is clear that the injury could not have reasonably been caused by the use of drugs or alcohol. You still need a reason to do post-accident drug tests.


With regard to incentive programs, OSHA now says that rate-based incentive programs (i.e. programs that withhold a prize or bonus because of a reported injury) are permissible “as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.” Certainly, this is a change from the previous total prohibition against such programs - but it comes with conditions.
If an employer implements a rate-based incentive program, it must also implement one or more of the following programs to “counterbalance” the potentially deterrent effect of the rate-based incentive program:

  • An incentive program that rewards employees for identifying unsafe conditions;
  • A training program for all employees to reinforce their right to report injuries free of retaliation;
  • A mechanism for evaluating employee willingness to report injuries.

OSHA notes that merely stating that employees are encouraged to report injuries free from fear of retaliation is not adequate to counterbalance the deterrent effect of a rate-based incentive program.


Notably, the October 11, 2018 Memo does not address the discipline of injured employees who are found to have violated a company safety policy. Nothing has changed on that front. Employers can and should continue to discipline any employee who violates a safety rule, regardless of whether the employee was injured. Again, employers must be careful to ensure that the disciplinary program is enforced equally and consistently against injured and non-injured employees alike.

In short, Employers have always been permitted to maintain post-accident drug policies and incentive programs that do not deter injury reporting or punish injured employees. The October 11, 2018 guidance clarifies how employers can implement those programs in a manner that would not violate 1904.35(b). It remains up to employers to ensure their programs are not administered in a manner that would deter or punish injury reporting. Please note, this Memo does not affect employers operating in state-OSHA program states. Thus, if you operate in a state-plan state, you will need to comply with the anti-retaliation regulations effective in that state.

Click now to read the OSHA Memo.

This article was prepared by
Gary Auman of Auman, Mahan & Furry
OMA Legal Counsel