A recent Occupational Safety and Health Administration (“OSHA”) memorandum may help employers in finding ways to reduce workplace injuries, workers’ compensation claims, and lost time due to injuries. As outlined in the memorandum, employers will be able to carefully develop and implement safety incentive programs that reward employees for not having any reportable injuries in a specific time period, and will help the employer control or reduce its liability and workers compensation premiums. In addition, OSHA has provided a more employer friendly interpretation of its retaliation regulations.
In order to satisfy OSHA’s latest interpretation, an employer must consistently enforce its work rules so that it can demonstrate that it is serious about creating and maintaining a culture of safety. It cannot act in a way that simply is focused on reducing insurance rates and premiums, which can have the effect of discouraging employees from reporting injuries. To that end, not only must employees be rewarded for having no accidents or injuries in a particular time period, but the program must encourage employees to report injuries, unsafe conditions, or close calls so that steps can be taken to address safety risks. Additionally, the program must emphasize that by reporting an injury or an unsafe condition, the employee will not be subject to retaliation. According to OSHA, these elements are essential to having a successful safety program that employees will understand.
OSHA also weighed in on drug testing employees after a workplace accident. For example, OSHA clarified that any drug testing should include all employees whose conduct could have contributed to the incident, not just employees who reported injuries or who were hurt. While this guidance potentially expands the scope of drug testing in the workplace, it is imperative that Connecticut employers not overlook Connecticut law. Connecticut allows pre-employment testing and random testing of those in high-risk or safety-sensitive jobs, but for all other employees, there must be reasonable suspicion that the employee is under the influence of drugs or alcohol. In addition, a federal district court in Connecticut has said that simply having an accident does not constitute reasonable suspicion to conduct a drug test. Therefore, employers must be cautious not to run afoul of any legal requirements when testing employees after an accident.