OSHA Clarifies that Safety-Incentive Programs and Post-Incident Drug/Alcohol Testing Are Permissible

OSHA continues to back away from previous guidance regarding safety-incentive programs and drug/alcohol testing. On October 11, 2018, OSHA issued another significant standard interpretation regarding safety-incentive programs and post-incident drug/alcohol testing.  In this new memorandum, OSHA shifts course and clarifies that such programs and testing are permitted if properly drafted and enforced.

First, OSHA has clarified that OSHA does not prohibit most safety-incentive programs.  In an important shift, OSHA now acknowledges that safety-incentive programs “can be an important tool to promote workplace safety and health.”

OSHA has also moved away from its 2016 position that post-incident drug testing was permitted only when the employer believed there was a “reasonable possibility” that illegal drug (or alcohol) use “could have contributed” to the incident.  Now, a request for a post-accident test would violate OSHA injury-reporting retaliation prohibitions only “if the employer took action to penalize the employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  The new interpretation eliminates any suggestion that post-incident testing be based on “suspicion” that employee drug or alcohol use contributed to an accident.

A link to the full analysis is here:  https://www.littler.com/publication-press/publication/about-face-osha-clarifies-safety-incentive-programs-and-post-incident