On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published another final rule regarding the reporting of injuries and illnesses and protecting employees who make complaints. This new OSHA rule, which went into effect on August 10, 2016, goes after two workplace safety policies that are often involved in Workers’ Compensation claims: 1) incentive programs for accident avoidance and 2) post-incident drug testing. 

OSHA will consider incentive programs to be retaliatory if they offer benefits to employees who do not report injuries and illnesses. A policy will not be considered to be reasonable if it would “deter or discourage” an employee from accurately reporting a workplace injury or illness. Programs that reward employees for correctly following legitimate safety rules or promote participation in safety trainings or investigations will not be considered to be retaliatory. Consequently, safety incentive programs should be reviewed to ensure that they incentivize reporting of injuries and illnesses and do not discourage employees from making such reports in any way. 

OSHA also concluded that “blanket” post-injury drug testing deters proper reporting. However, when the affected employee is “likely to have contributed to the incident,” and a drug test can accurately identify impairment caused by the drug use, such testing would be permissible. The new OSHA rule explains that drug tests would not be considered to be “reasonable” where an employee suffers a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Also, given the focus on identifying impairment, blood screens may now be necessary when a drug test is needed, as less-intrusive urine screens, which can easily identify the presence of drugs, may not be adequate in identifying impairment. 

However, post-accident blanket drug testing will not be considered retaliatory if it is required by state law. In some states, workers’ compensation requirements for drug testing are covered by state law. Most of those laws specifically note that “an employer shall not have a legal duty under this article to request an employee or job applicant to undergo testing.” Instead, the drug testing program is only required for employers who wish to benefit from workers’ compensation insurance premium discounts. 

Even so, under those current state rules, employers must require an employee to submit to a substance abuse test whenever he or she has caused or contributed to an on-the-job injury or lost work time due to one. This may no longer be permissible under the new OSHA rules, which means those sections of state law will likely be modified.