On October 11, 2018, OSHA issued interpretive guidance designed to “clarify” controversial language in the Preamble to the anti-retaliation provisions in the recordkeeping and reporting amendments adopted by the Obama OSHA Administrator in 2016. The Preamble, which can be cited as authority in contested OSHA matters, suggested that employer safety-incentive programs are generally suspect because, in OSHA’s view, they incentivize workers not to report injuries/illnesses (or put peer pressure on co-workers not to report) and suggested that post-incident drug-testing was facially grounds for proving retaliation against workers for reporting injuries/illnesses.

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