Federal Court Rejects Challenge to OSHA Rule Prohibiting Incentive Based Workplace Safety Programs and Mandatory Post-Accident Drug Testing

On November 28, 2016, a federal court in Texas denied a request for a preliminary injunction that would have blocked the Occupational Safety and Health Administration (OSHA) from implementing a new rule regarding workplace drug testing.  The new rule, which went into effect on December 1, 2016, modifies a regulation of the Occupational Safety and Health Act (“OSH Act”) which prohibits retaliation against employees for reporting workplace injuries. 

Under the new rule, employers may only require drug testing where there is a “reasonable possibility” that “drug use by the reporting employee was a contributing factor to the reported injury or illness.”  81 Fed. Reg. 29,624, 29,673.  As an example, the preamble states that “it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction” because requiring drug testing under those circumstances “is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.”  Id.

In addition, employers may no longer have incentive based safety programs that reward employees for avoiding workplace accidents for a certain period of time.  The new rule states that it is a “violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work-related injury or illness.”  81 Fed. Reg. 29,624, 29,674 (May 12, 2016) (to be codified at 29 C.F.R. pt. 1904.35(b)(1)).

Employers who have used incentive-based safety programs and mandatory post-accident drug testing in their efforts to reduce workplace injuries may no longer do so and must now revise their policies to ensure compliance with the regulation. Please do not hesitate to contact any of our attorneys for assistance in reviewing and revising such policies.