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70 Security Dealer & Integrator / www.SecurityInfoWatch.com October 2016 OSHA instructs employers to "limit post-incident testing to situ- ations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use." OSHA explains with examples: it "would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction." OSHA's interpretation of its new rule calls into question the widespread use of mandatory post-accident drug testing programs. While federal courts may not uphold OSHA's reasoning that a drug test, standing alone, is a form of an "adverse employment action," employers should be mindful of their policies and should consider whether to update those policies to avoid scru- tiny by OSHA. Incentive Programs e new rule similarly condemns employer safety "incentive programs" as form of retaliation. is position is consistent with OSHA's past rulings and guidance on employer incentive programs, but it goes further in widening its prohibition on incentive programs even when they are part of a broader compliance program. e new rules explain that "it is a violation...for an employer to take adverse action against an employee for reporting a work-related injury or illness, whether or not such adverse action was part of an incentive pro- gram." OSHA's interpretation prohib- its all programs in which employees are denied a benefit on the basis of any injury or illness report. For example, many employers pro- vide a "safety bonus" if there are no workplace injuries. OSHA's position is that a "safety bonus" does not improve safety, but rather chills employees from reporting injuries because they want to receive the bonus. However, OSHA does not object to an incentive program that makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules, rather than whether they reported any injuries or illnesses. OSHA further encour- ages incentive programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ''near misses.'' Accordingly, employers should con- sider OSHA's new interpretation when reassessing their incentive programs to ensure they are offering a benefit or reward based on promoting a safe workplace, and not just penalizing employees for getting injured. New Retaliation Rules In the Preamble to the anti-retalia- tion portion of the Final Rule, OSHA takes the position that its compliance officers can now issue citations to employers who discipline workers for reporting injuries and illnesses when it believes that no legitimate workplace safety rule has been violated. Accordingly, OSHA intends to give its compliance officers, who have no formal training in employment dis- crimination law, the authority to issue citations based on perceived retaliation in the workplace. OSHA's interpretation overturns the Agency's long-standing statutory framework for retaliation complaints under Section 11(c) of the Act, under which employees must report allega- tions of retaliation to OSHA, which then uses specialized OSHA 11(c) investigators trained to investigate workplace retaliation claims. Unlike a Section 11(c) complaint, in which an employee must file a retalia- tion claim with OSHA within 30 days, a compliance officer has six months to issue OSHA citations. Further, under the new rules, the employee is not even required to file any complaint; in fact, the employee may not even believe that he/she suffered retaliation. Rather, in OSHA's world view, all that matters is whether OSHA believes that there has been wrongdoing. Your Business Citation Classification Old Maximum Penalty New Maximum Penalty as of August 1, 2016 Other than Serious $7,000 $12,471 Serious $7,000 $12,471 Willful $70,000 $124,709 Repeat $70,000 $124,709 Failure to Abate — $12,471 Note: Penalty amounts will continue to increase annually based on increases in the consumer price index.