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Safety incentives: Legal and logical

Up against this month’s deadline, the National Ready Mixed Concrete Association logged a productive week in Washington, D.C., led by Chairman Rodney Grogan (MMC Materials), Vice Chairman Bill Sandbrook (U.S. Concrete) and Safety, Environmental and Operations Committee Chairman David Williams’ (Chaney Enterprises) participation in a Pledge to America’s Workers event at the White House.

The workforce development-driven Pledge campaign paces other Trump administration measures benefitting employers and employees. Department of Labor staff, for example, is reviewing Occupational Safety and Health Administration rules pre-dating Donald Trump’s arrival at 1600 Pennsylvania. The agency moved last month to restore employer autonomy for setting and enforcing accident prevention or investigation policies. It informed regional administrators and state designees that safety incentive programs and post-incident drug testing—contrary to perceptions of a final rule adopted during the Obama administration’s waning months—do not violate the Recording and Reporting Occupational Injuries and Illness, Employee Involvement Standard 1904.35.

A 2016 rule revised the standard by prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. Post-promulgation interpretive documents reflected applicability to actions taken under workplace safety incentive and post-incident drug testing programs. As discussed here in July 2016 (“Incident reduction secondary in rewrite of OSHA reporting, anti-retaliation rules”), the rule was challenged by an TEXO ABC/AGC-led coalition in the U.S. District Court for the Northern District of Texas. Plaintiffs attorneys explained how incident-based safety incentive and routine, mandatory post-accident drug testing programs help employers to promote OSHA’s primary mission: Workplace safety. They obtained injunctions against implementation of the rule, while a change of administrations enabled Labor officials to grasp the confusion it sowed. A lawsuit was effectively withdrawn as plaintiffs observed agency efforts to address their concerns.

Acting Director of Safety Programs Kim Stille settles the matter in an October 2018 memo to field officials, noting: “The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. Evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) demonstrate[s] that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate [1904.35] if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

“Incentive programs can be an important tool to promote workplace safety and health. One type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible under 1904.35,” the memo affirms. Also permissible are a) rate-based incentive programs focused on reducing the number of reported injuries and illnesses provided they are not implemented in a manner that discourages reporting; and, b) workplace drug tests that are random, unrelated to the reporting of a work-related injury or illness, and aimed at evaluating the root cause of an incident that harmed or could have harmed employees.

Revisiting of the Recording and Reporting Occupational Injuries and Illness, Employee Involvement Standard 1904.35 embodies a spirit of industry and federal agency cooperation implicit in White House actions. It’s a good bet that OSHA will continue to play a positive role by respecting Occupational Safety and Health Act limitations and not interfering with businesses adopting performance-based strategies that drive incident rates south.