By Lauren White, RCS Reporter.
Employers in the construction industry have been unwilling to establish “safety incentive programs and conduct post-incident drug testing…” according to Cotney Construction Law. Employers didn’t want to violate the Occupational Safety and Health Administration’s (OSHA) anti-retaliation provision from 2016. It prohibited, “...employers from retaliating against employees for reporting workplace injuries,” Cotney Law explains.
However, OSHA recently made some clarifications concerning their provision. They explained that safety incentive programs and post-incident drug testing are permissible under the rule if they: “reward workers for reporting near-misses or hazards…” and if they “...are not implemented in a manner that discourages reporting,” reveals Cotney Law. Rate-based programs, which Cotney Law clarifies as, “providing bonuses to employees for injury free months of work,” are also permitted.
“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,” Cotney Law shares. With this clarification from OSHA, employers should not be hesitant to conduct post-accident drug testing of employees. Employers should test all employees who might have been involved in the incident, instead of targeting only the employees who reported the incident.
Employers should make sure their employees feel secure reporting injuries. If this is the case, “OSHA should not take negative action against the employers for negative action against employees (i.e., withholding of bonus),” Cotney Law discloses. As long as employers are promoting workplace safety instead of penalizing employees for reporting work-related injuries or illnesses, they will remain in compliance with the anti-retaliation rule.
Consult an experienced construction attorney like Cotney Construction Law for more information on OSHA’s anti-retaliation provision.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.