During the Obama presidency, the federal Occupational Safety and Health Administration issued interpretation memoranda that called into question the legality of common employer programs intended to reduce accident rates. This guidance involved workplace safety incentive programs, as well as mandatory post-accident drug testing. OSHA said that incentive programs depriving employees of some reward if accidents occur tend to discourage employees from reporting such incidents. Similarly, by subjecting employees to automatic post-accident drug testing, OSHA concluded that employees would fail to notify their employees if they feared disciplinary action based on such test results. The interpretation letter stated that both practices could be considered retaliatory under the OSH Act.

Although OSHA never began bringing enforcement actions based on this position, it caused many employers to eliminate or substantially reduce accident reduction programs deemed to be in potential conflict with this opinion. Recently, OSHA issued a new interpretive guidance that substantially reverses the previous positions. For safety incentive programs, OSHA now says that employers can offer rewards for accident avoidance as long as they take steps to make sure that employees understand that they are free to report illnesses or injuries. These steps should include things like employee training on reporting procedures, or incentives for reporting unsafe working conditions.

In terms of post-accident drug testing, OSHA stated that such testing is permitted so long as the employer tests all employees who could have contributed to the situation – and not just the employee or employees who reported the incident. Supervisors and safety managers should be informed about these developments, as well as the company’s position on avoiding retaliation against any person who reports an injury, illness, or workplace safety issue.