OSHA Targets Safety Incentive Programs

It has long been a concern among safety professionals: Do safety incentive programs reduce injuries, or do they encourage workers not to report when they get hurt? Now the U.S. Occupational Safety and Health Administration (OSHA) is weighing in on the issue, and, according to a memo sent to OSHA regional administrators and whistle-blower program managers, companies’ safety incentive and recognition programs that reward employees for safe behavior could be violating the law.

The March 12, 2012, memo from Deputy Assistant Secretary of Labor Richard Fairfax focused on workplace policies and practices, including employer safety initiatives, that could discourage employees from reporting injuries and could discriminate against workers who notify employers about injuries and illnesses.

According to the memo, many types of employer policies, particularly those that link management or supervisory bonuses to lower reported injury rates, could potentially lead to unlawful discrimination under the Occupational Safety and Health (OSH) Act, as well as violate OSHA’s recordkeeping regulations.

“If the incentive is great enough that its loss dissuades reasonable workers from reporting injuries,” Fairfax said, the employer is violating the law and a recordkeeping investigation should be initiated.

The memo explains that “while OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.” The document details four of what the agency considers the most common potentially discriminatory safety practices:

Safety incentive programs that discourage workers from reporting injuries. For example, the memo describes a scenario in which an employer makes employees eligible to receive a prize or bonus if there have been no injuries the previous year. According to OSHA, such a program, however well-intentioned, might discourage employees from reporting injuries and could potentially discriminate against those who do report injuries, particularly if the employee or work group reporting the injury would be disqualified from receiving the incentive. This type of program could result in an employer’s failure to record injuries in violation of OSHA’s recordkeeping and reporting requirements.

A policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances. “An employer’s policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury,” the memo states.

A policy that disciplines an employee who violate a company’s rule regarding how soon an injury needs to be reported. The rules can’t penalize workers who don’t realize immediately that their injuries are serious enough to report or that they are injured, the memo made clear. Also, any discipline must not be disproportionate to the situation, the memo stated.

A policy that disciplines a worker because of an injury that resulted from the employee’s violation of a safety rule. Does the employer impose discipline consistently against employees who violate the work rule whether or not there was an injury? Compliance officers and whistle-blower investigators are directed to focus on whether the employer monitors compliance with the safety rule consistently in the absence of an injury and whether it disciplines for violation of the safety rule uniformly in the absence of injury. If discipline is issued only when an employee is injured, such disciplinary decisions will be considered suspect.

During a March 21, 2012, congressional hearing, Labor Secretary Hilda Solis said she would review the memo but assured a House committee that OSHA does not intend to issue citations for employer safety programs in general.

Roy Maurer is a staff writer for SHRM.