10-22-2018; Shawn Biery on OSHA Interp of Drug Testing/Safety Incentives; Kevin Boyle on IN WC Update--Must Read and more

Synopsis: OSHA provides “Standard Interpretation” clarifying the Obama-era guidance which circumscribed post-incident drug testing and prohibited incentive programs. Research and Analysis by Shawn R. Biery, J.D., MSCC.


Editor’s comment:  We have regularly fielded questions regarding the post-incident drug testing guidance which was implemented, clarified, paused, re-clarified, and as confusing as any of the guidelines which seemed to fly in the face of actual common sense safety enforcement in the workplace.


https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11 is a welcome clarification of OSHA’s 2016 retaliation rule which left employers uncertain about what programs were permissible and whether they would face citations for long-standing safety programs aimed at encouraging safe behaviors and reducing injury rates.


This new clarification intends to “to clarify the Department’s position that [the rule] does not prohibit workplace safety incentive programs or post-incident drug testing. 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.”


It goes on to follow the same suggestion we have been providing for years in that the clarification explains that “evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”


Post-incident drug testing policies and safety incentive programs will be considered retaliatory and unlawful only where they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” Properly formulated and lawful post-incident drug testing policies and safety incentive programs will be permitted and will not result in OSHA citations.


OSHA’s position on post-incident drug testing has been confusing to employers who already had enough to deal with in the face of investigating workplace safety incidents. The Standard Interpretation clarifies that “most instances of workplace drug testing are permissible,” including:


  • Random drug testing;

  • Drug testing unrelated to the reporting of a work-related injury or illness;

  • Drug testing under a state workers’ compensation law;

  • Drug testing under other federal law, such as a U.S. Department of Transportation rule;

  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.


It should be noted, if the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.


Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “post-accident”) drug-testing programs. AGAIN—Post-incident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident. OSHA reiterates that employers may not use a post-injury drug testing program, which the Agency views as retaliatory and also exposes employers to worker’s compensation retaliation tort claims.


Because Illinois has an Intoxication section in the IL WC Act, most instances in which an employer seeks a post-accident test should be permissible. As noted, only in cases where seeking the test appears to be retaliatory would such testing be impermissible.


OSHA Also Permits Safety Incentive Programs


The Standard Interpretation also reverses course on the 2016 retaliation regulation’s prohibition of safety programs. With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.” The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month. OSHA’s new position thus permits employers to bring back bonuses, meals and prizes and also permits programs which evaluate managers based on their work unit’s lack of injuries.


It is important to pay attention to the conditions in which you can lawfully implement such a safety program. The employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting. According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient.


Employers need to undertake their choice of additional “adequate precautions,” such as:


  • An incentive program which rewards employees for identifying unsafe conditions in the workplace; or

  • A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy; or

  • A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.


It will likely be important to detail your permitted and encouraged safety incentive programs to verify you intend to reward employees for identifying unsafe conditions in the workplace. It is also important to conduct brief training on reporting illnesses and injuries, which may be as easy as a current employee seminar and then adding similar info to your initial orientation for new hires. The “mechanism for accurately evaluating employees willingness to report” may be a variety of options including either a regularly scheduled safety meeting, or a random questionnaire on employee willingness to report injuries and illnesses.


We suggest reviewing your prior programs and considering re-implementation or adoption of both of these drug screen and safety programs which historically do appear to be effective at reducing workplace injury rates.


This article was researched and written by Shawn R. Biery, JD, MSCC. For any questions regarding these or other important issues, you can contact Shawn at sbiery@keefe-law.com.



Synopsis: Two Updates on Indiana Worker’s Compensation. This is a “Must Read.” Comment by Kevin Boyle, Our Indiana WC Team Leader at Keefe Campbell Biery & Associates, LLC.


Editor’s comment:

Faster Section 15 Approvals After IWCB’s New E-Filing Procedures.  

I am happy to report that the IWCB’s switch in the past months from paper-filing Section 15s to e-filing seems to be working great for us and our clients. We’re achieving much faster Approval turn-around times now that we can directly submit the Section 15s to the judges. If you aren’t getting faster Approvals now, let me know.

Also, I can pass the new efficiencies on to you. I am generally able to prepare draft Section 15s within 24 hours. If your current Indiana counsel can’t do that, give me a try soon.  

Please also remember that the new e-filing procedures are just for Section 15s and not for 1043s or other filing which still must be submitted in paper form and mailed.

New Lower Indiana Worker’s Compensation Rates Effective 1-1-2019.

The Indiana Department of Insurance just announced lower workers’ compensation rates paid by businesses will take effect on January 1, 2019. The recently approved reduction averages 7.6 percent and will save businesses about $63 million. The IDI says Indiana workers’ compensation rates have been on a downward trend for several years because of fewer worker injuries.

Also, growing Indiana payrolls create a larger base for collecting premiums, and that also contributes to the lower rates.  It still makes sense to do business in Indiana.



Featured Event:



IL Workers' Compensation

Preferred Provider Program with Shawn Biery, J.D.


Tuesday | October 30th, 2018

11:00am - 12:30pm




Join the Illinois Chamber and Shawn R. Biery from Keefe, Campbell, Biery & Associates for a webinar on October 30, 2018 to learn about Preferred Provider Programs as they relate to Illinois Workers’ Compensation.


Shawn will summarize the language of the Illinois WC Act and the path of PPPs in Illinois from legislation to implementation and current updates. Learn the potential impact on Workers’ Compensation if you join a PPP and potential strategies to increase your ability to manage workers’ compensation claims and navigate the medical issues which create much of the stress and drama involved with workers’ compensation.


Register Here