We know that all companies eventually face that critical moment when an accident happens on the job, or in service thereof. When this happens companies often have in place post-incident drug testing programs, as well as injury rate-based incentive programs to encourage the reporting and recording of such accidents. Where OSAH had once considered such programs to be in violation of §1904.35(b)(1)(iv), we now know that OSHA has reviewed its policies, and concluded that these programs now fall in line with the May 2016 rule, as stated in a Memorandum to Regional Administrators and State Designees published October 11.

This renewed stance in favor of post-incident drug testing programs and injury rate-based incentive programs is based on the idea that the policies themselves promote worker encouragement when reporting hazards or accidents. The company must uphold policy that encourages employees to report incidents without fear of retribution by their employer. “Positive action taken under this type of program,” the Agency says, “is always permissible under §1904.35(b)(1)(iv).”

OSHA has stated in previous policies that incident-rate based programs, “that rewards employees for identifying unsafe conditions in the workplace; a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy.”

As for post-incident drug testing, OSHA has stated that some examples of approved testing parameters under §1904.35(b)(1)(iv) could be, “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, and drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.” As well, one final suggestion is that if “the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

We can see that OSHA’s new stance can give company’s further confidence that current and in-place post-incident drug testing programs, as well as injury rate-based incentive programs, can lead to a safer and more alert workplace, as well as encourage their employees to recognize hazards, and report incidents freely, and without the fear of retaliation from their superiors.