OSHA’s Guidance memo call into serious question an employers’ right to conduct post-accident drug testing. OSHA stated in the preamble to the rule that “blanket post-injury drug testing policies deter proper reporting.” Te rule, however, does not ban
drug testing. First, it certainly allows drug testing is required under other federal or state laws or by workers’ compensation programs. OSHA’s guidance also provides: “(T)he general principle here is
that drug testing may not be used by the employer as a form of disci- pline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.” Per OSHA, the rule is tailored to
prohibit only “drug testing for report- ing work-related injuries or illnesses without an objectively reasonable basis for doing so.” In evaluating whether an employer has an “objec- tively reasonable basis” for post-injury drug testing, the central inquiry is whether the employer had a reason- able basis for believing drug use by the reporting employee could have contributed to the injury. Ultimately, an employer’s drug testing policy must be used only to evaluate the root
Companies must do many things to comply with recordkeeping regulations.
causes of workplace injury and ill- ness and cannot be used as a form of discipline or to deter employees from reporting injuries.
Safety Incentive Programs For the last several years, OSHA
has expressed concern about the purported chilling effect of certain types of safety incentive programs. While recognizing that some pro- grams are helpful in creating positive safety culture, OSHA explained “if . . . the programs are not structured carefully, they have the potential to discourage reporting of work-related
COMPENSATION PROGRAMS SAFETY INCENTIVE AND
OSHA is concerned about the chilling effect and retaliatory nature of certain types of safety incentive programs. It approves the following: • Raffles in month that all employees comply with legitimate safety rules like using hard hats.
• Bonuses to employees observed working safely, reporting unsafe conditions, completing safety training, or joining a safety committee.
• Senior managers or executives receiving an annual bonus tied to injury rates.
However, OSHA does not approve of: • Bonuses such as pizza parties, safety bingo, gift cards or others for employ- ees or crews for having no injuries over a certain period of time.
• Rewarding or denying benefits or bonuses based on injury rates. • Front-line supervisors having an annual bonus tied to injury rates.
injuries and illnesses without improving workplace safety.” OSHA’s concern is specifically
directed at incentive programs that reward the absence of injury or with- hold rewards from an individual or group because someone reports an injury or does not achieve a certain injury metric. Te key is whether the gift or benefit to the employee (whether it be a gift card, a monetary bonus, or a raffle for a prize, etc.) is based on leading factors (such as complying with a safety rule) or lag- ging factors (injury rates). Lagging indicator programs will be highly suspect and likely impermissible under OSHA’s new rule.
Will OSHA’s New Rule Survive? While rumors certainly abound
that the Trump Administration will eventually peel back this rule—or simply not enforce it—such action may not be imminent. Similarly, while industry plaintiffs have sued OSHA over the anti-retaliation provisions of the rule in federal court, the outcome of that litigation could be many months or even years away. Tus, until either the Trump Administration eviscerates the rule or industry plaintiffs prevail in court, metalcasters with 20 or more employees should begin auditing their recordkeeping forms and analyze their existing reporting, drug testing, and safety incentive programs to ensure they comply with OSHA’s new rule.
March 2017 MODERN CASTING | 45
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