In May 2016, the Occupational Safety and Health Administration amended 29 CFR §1904.35 to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. This revision to the recordkeeping regulations became immediately controversial when OSHA interpreted it to limit employers’ use of safety incentive policies and post-incident drug testing. After very limited enforcement of §1904.35(b)(1)(iv), OSHA has now issued a Memorandum to Regional Administrators, which the Agency represents is a clarification of its position on safety incentive policies and post-incident drug testing. The new Memorandum, issued October 11, appears to represent a change in tone rather than a substantive change in position, but it suggests a softer enforcement approach.
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