We have closely monitored the federal OSHA’s 2016 retaliation regulation, 29 CFR 1904.35(b)(1) (iv), and associated guidance, which had explained examples of post-accident drug testing and safety incentives as instances of unlawful retaliation. OSHA’s 2016 retaliation rule 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. On Oct. 11, 2018, OSHA issued a new Standard Interpretation, which clarifies the agency’s position.
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