In an October 11, 2018 memorandum to Regional Administrators and State Designees, OSHA clarified its position on safety incentive programs and post-incident drug testing under the anti-retaliation provision at 29 CFR 1904.35(b)(1)(iv). The memo superseded four prior interpretive documents OSHA issued in 2016.
On incentive programs, OSHA distinguishes two types. Programs that reward employees for reporting near-misses or hazards are always permissible. Rate-based programs — those that reward employees for injury-free periods — are lawful if implemented in a way that does not discourage injury reporting. To keep a rate-based program on the right side of the rule, OSHA suggests complementary measures such as 'an incentive program that rewards employees for identifying unsafe conditions' and 'a training program for all employees to reinforce reporting rights and responsibilities.'
On drug testing, OSHA says most testing remains permissible, including random testing, testing unrelated to injury reporting, testing required by workers' compensation law or federal law, and testing done to investigate an incident's root cause — provided the employer tests all employees whose conduct could have contributed to the incident, not just the ones who reported injuries. The through-line in both areas: action taken under these policies violates 1904.35(b)(1)(iv) only when the employer intends to penalize reporting rather than promote safety.