In October, the government announced new OSHA drug testing and incentive program rules. How will they affect your clients?

Pop quiz. Your client is a trucking company. Let’s call them ABC Trucking. Their workers’ compensation premiums are high because of the high rate of NCCI expected losses in the industry. Because you are a wise insurance agent, you have advised them to implement safety programs that may lower their mod.

ABC Trucking decides to offer an incentive program. For every month that the company operates with zero work-related injuries, each employee will receive a small bonus.

So here’s the question: Does your client’s incentive program comply with OSHA rules? Let’s find out.

Changes in the OSHA Drug Testing and Incentive Rule

You may already be familiar with the 2016 OSHA drug testing and incentive program rule. They were developed in an effort to encourage incident reporting.

Under the old rule, employers were prohibited from retaliating against employees who reported injuries. The guidance listed several post-injury employer actions that would likely violate the rule. Two examples: drug testing employees or withholding a benefit, such as an incentive, under certain circumstances.

The new rule recognizes that often, safety incentive programs and drug testing actually promote workplace safety and health. The agency doesn’t want to take away those effective tools, so it eased some of the restrictions. Employers may now offer safety incentives. They can also conduct post-incident drug testing most of the time. However, they still have to take steps to ensure that they do not penalize employees for reporting their injuries.

How to Ensure an Incentive Program Is in Compliance

The key to compliance with this rule is employer intentions. If the employer implements a workplace safety incentive program and takes some action to penalize employees who report injuries, that is a violation. But if the employer only acts out of a desire to promote workplace safety, they’re complying with the OSHA rule.  

Here are a few steps employers can take to show that their incentive programs are intended to promote safety rather than punish reporting employees:

• Have a clear, written company policy that prohibits retaliation against employees who report injuries.
• Consistently enforce all established safety rules, regardless of whether an injury or illness has been reported.
• Create a company culture that emphasizes safety over injury rates. Employees should be encouraged to take safety precautions and report any injuries immediately.
• Reward employees for reporting “near misses” or unsafe working conditions.
• Identify common causes of injury and illness in your company and implement specific precautions that address them.
• Implement an employee training program that showcases best practices in injury prevention. The program should also emphasize workers’ injury reporting rights and the employer’s anti-retaliation policy.
• Evaluate employees for their willingness to report injuries.

Going back to our example, ABC Trucking can have their safety incentive bonuses as long as they use them to promote safety only.

Since most truck driver injuries are caused by long hours on the road and lack of sleep and exercise, the company might try to remedy those issues. For example, they might encourage their drivers to take frequent rest breaks. They could offer gym membership discounts. The company could research routes that have access to truck stops and instruct drivers to use those. Perhaps every truck could have a bumper sticker that asks other drivers on the road to report unsafe driving. And they could hold frequent safety trainings. Or give drivers equipment to help them unload goods from their trucks.

If ABC Trucking is doing all of those things, then you have your answer to our “pop quiz.” Yes, your client’s incentive program is in compliance with OSHA’s new rule.

But we’re not done! Let’s take a look at the new OSHA drug testing rule.

How to Ensure a Drug Testing Program Is in Compliance

Previously, OSHA drug testing guidance signaled that automatic post-incident drug testing was not allowed. However, the new rule states that post-incident drug testing is permitted most of the time.

It specifically states that employers may automatically drug test an employee after a dangerous incident in order to determine the root cause. The employer must test each employee whose behavior might have contributed to the incident, not just the employees who were injured.

Here are a few other examples of drug testing programs that the new OSHA rule allows:

• Random drug testing
• Drug testing unrelated to the reporting of a work-related injury or illness
• Testing under a state workers’ compensation law
• Drug testing under other federal law, such as a U.S. Department of Transportation rule

So let’s look at our example again. ABC Trucking knows that impaired driving causes millions of traffic accidents, injuries, and deaths each year. Because of this, they want to ensure that their truckers are drug and alcohol-free behind the wheel. They decide to implement a substance testing program.

The company administers drug screenings as part of their onboarding process. They also conduct random drug and blood alcohol tests for all drivers several times a year. And their policy calls for immediate drug and blood alcohol testing after all safety incidents.

According to the new OSHA drug testing rules, all of these components are allowable, and ABC Trucking is in compliance.

Do you still have questions about OSHA drug testing and safety incentive program rules? Give us a call! We’d love to help you.