Edit Sept 1, 2016…The information below has been adjusted since our posting and the new rules go into effect as of November 1, 2016 instead of August 10.
Due to the major changes listed below, HR Mobile Services, Inc. will be adjusting all of our Drug and Substance Abuse Policies to better reflect these changes.
This is from the rewriting of (29 CFR 1904.35(b)(1)(I) and subsequent commentary letter issued by OSHA in May, 2016.
Back in 2006, OSHA issued a paper that took at dim view of Safety incentive programs. The general idea was that if there were no injuries reported for a month or a quarter, there would be a drawing for prizes such as a TV or gift cards. While this was done with good intentions that employees would work more carefully so that everyone would have a chance to win valuable prizes, it also had an impact (intended or not) on the reporting of injuries. The letter went on to point out that an employee could be put under increased peer pressure not to report an injury and that was not acceptable. The new rule specifically prohibits employers from using incentive programs that discourage injury reporting. THEY ARE NOT BANNING INCENTIVE PROGRAMS! Programs could include:
- – Providing t-shirts to workers serving on safety and health committees or to celebrate a goal being reached
- – offering modest rewards for suggesting ways to strengthen safety and health
- – throwing a company or department wide recognition party after the successful completion of safety training
The final ruling goes into effect on Nov. 1, 2016. The final rule explicitly incorporates “the existing prohibition on retaliating against employees for reporting work- related injuries or illnesses that is already imposed on employers”. You can bet that lawyers will be quoting this and inquiring into incentive programs when filing a 132-a or EEOC discrimination case. BE CAREFUL. If you are not sure of your program, give us a call.
OSHA has determined that blanket application of a company post-injury drug test policy may not be legal because it may deter an employee from reporting an injury. Employers are prohibited from using the drug testing as a threat to employees who may want to report and be treated for an injury.
Where this can happen, and you need to address this with your supervisors, is when the supervisor says to the employee, “you can be treated at the clinic, but you know they are going to test you for drugs and alcohol and if they find anything you will be fired”. That is a threat and is illegal. You must make sure your people know that comments like this expose your company to major fines.
Further, drug testing after an accident is only allowed when 2 situations are present. The first is that the injury MUST be associated with an action on the part of the employee that could have been connected to a drug or alcohol impairment. That is to say, if an employee is stung by a bee, there is no connection to unusual behavior due to being under the influence and so there is no reason to apply a drug and alcohol screening test. If the employee was swinging a stick at a bee hive and got stung, there may be a good reason to have them tested. If a tree branch falls on an employee, no test. If an employee is climbing a tree for fun during lunch, maybe there is a reason for testing. If an employee has a back strain or a cut due to a missing guard on a piece of machinery, there is not a good reason to drug test.
The second part of this is that the testing should only be done when it can accurately identify impairment caused by drug use.
So, you need to be reasonable in your application of testing employees and you cannot use it as a threat to not report. You still need to follow DOT rules because they may override some of these situations. All DOT accidents require post-accident testing and in most cases would meet the standard above in either case.