Issue link: http://palletcentral.uberflip.com/i/1071930
citation would be issued if an employee loses a prize or bonus after reporting an injury, "as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness." This is clearly a subjective standard, and it raises questions as to how an inspector will react if a worker reports losing a benefit due to injury and says that injuries will be concealed in the future as a result of the incentive program. Inaccurate reporting will, of course, skew the injury/illness data now being collected electronically by OSHA from many employers, and was the basis for addressing incentive programs, discipline and drug testing in the final rule. According to the revised policy, which supersedes previous policy on the topic, OSHA will look at rate-based programs to determine whether it includes elements such as: • Rewards for employees who identify unsafe conditions in the workplace; • Training for workers to reinforce Section 11(c) and Part 1904 reporting rights and responsibilities and emphasizes the employer's non-retaliation policy; and • A mechanism for accurately evaluating employees' willingness to report injuries and illnesses. With respect to post-injury drug testing programs, the memorandum clarifies that Part 1904 does not affect random testing, drug testing unrelated to the reporting of a work- related injury/illness, testing under a state worker's compensation law requirement or testing pursuant to a federal law requirement (e.g., DOT testing of commercial drivers). For post-incident testing that is done "to evaluate the root cause of a workplace incident that harmed or could have harmed employees," testing of the injured worker can legally be performed as long as the employer also tests "all employees whose conduct could have contributed to the incident, not just employees who reported injuries." This still leaves open the question of drug testing a worker who reports an injury such as a hernia or reports an illness following a medical exam (such as hearing loss), where there is no real "incident" to investigate or anyone to test other than the worker reporting the OSHA recordable condition. Under the original OSHA interpretation of its 2016 rule, it was viewed as a violation to drug test a worker solely because he/she was injured, unless the employer could articulate a reason why (in advance palletcentral.com PalletCentral • November-December 2018 23 Drug Testing Programs iStockphoto.com/zdravkovic