The prohibition was included in OSHA’s final rule, “Improve Tracking of Workplace Injuries and Illnesses,” issued on May 12, 2016. In the preamble to that final rule, OSHA suggested that certain safety incentive programs could discourage employees from reporting injuries and illnesses (e.g., rewarding a team of employees a bonus if no one from the team is injured over some period of time) and would be prohibited by the rule.

 

OSHA also suggested that certain post-incident drug testing programs might discourage employees from reporting injuries and illnesses and would be prohibited where the employer did not have a reasonable basis for concluding that drug or alcohol use was a likely contributor to the incident.

 

Stakeholders, including NAHB, objected to the prohibition in the rule and the preamble language.  Many employers have successfully implemented safety incentive programs and post-incident drug testing programs and found them to improve workplace safety and health.

 

After issuing the rule, OSHA attempted to clarify the impact of it on safety incentive programs and post-incident drug testing programs in a series of guidance documents.  These guidance documents, while providing some further clarity, did not address the underlying concerns of NAHB and other employers.

 

In the Oct. 11 memorandum, OSHA goes further in permitting various programs that it had suggested previously would not be allowable.  With respect to safety incentive programs, OSHA indicates in the memorandum that rate-based incentive programs are permissible under the regulation, provided the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

 

With respect to drug testing, OSHA states that most instances of drug testing are permissible, including the following... Read the article on NAHBNow