OSHA Provides Much Needed Clarity on Post-Incident Drug Testing and Safety Incentive Programs

By WSRCA Legal Advisor, Cotney Construction Law.

In 2016, OSHA published its final rule amending 29 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting workplace injuries.

Since then, employers within the roofing and construction industries have been hesitant to conduct post-accident drug testing for fear of violating the new rule.

Employers can now breathe a sigh of relief as OSHA recently clarified its position on workplace safety incentive programs and post-incident drug testing. The good news is that employers are still permitted to conduct post-incident drug testing and implement safety incentive programs to promote workplace safety and health.

Specifically, OSHA stated that permissible drug testing includes: random drug testing; drug testing pursuant to state and federal laws; and, most importantly, post-accident drug testing to determine the root cause of the incident that harmed or could have harmed employees as long as the testing is not limited to the employees who reported injuries. Employers should now feel comfortable conducting post-accident drug testing of employees so long as they do not target the specific employees who reported the accident and instead test all those whose conduct may have contributed to the accident.

Further, OSHA clarified its position on incentive programs stating that positive action taken under a program that rewards workers for reporting near-misses or hazards is always permissible under the rule. OSHA also clarified its stance on the more controversial rate-based programs, (i.e., providing bonuses to employees for injury free months of work) stating that they are permissible under the rule as long as they are not implemented in a manner that discourages reporting.

Therefore, as long as employers implement adequate precautions to ensure that employees feel free to report injuries, OSHA will not take negative action against the employers for negative action against employees (i.e., withholding of bonus). Adequate precautions include: inventive programs to go along with rate-based programs that reward employees for reporting hazards in the workplace; and training programs that reinforce the employee’s right to report and not face employer retaliation.

Trent Cotney, CEO of Cotney Construction Law, is an advocate for the roofing industry, General Counsel of Western States Roofing Contractors Association (WSRCA), Florida Roofing & Sheet Metal Contractors Association (FRSA), Roofing Technology Think Tank (RT3), Tennessee Association of Roofing Contractors (TARC), National Women in Roofing (NWIR), and several other local roofing associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.

 All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

Source: WSRCA