OSHA Memo Challanges Safety Incentives

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In a memo by the Deputy Assistant Secretary, OSHA has criticized incentive programs which discourage workplace injuries. According to the memo, there are several types of workplace policies and practices which discourage reporting and therefore could: result in unlawful discrimination, be a violation of section 11(c), violate whistleblower protection statutes or may violate OSHA's recordkeeping regulations which ensure that employees have a way to report work-related injuries and illnesses.

The following circumstances where described in the memo as problematic:

-Employers who have a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury.

-Disciplining an employee who reports an injury or illness and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. The rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all. Factors such as the following may be considered: whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate, whether the employee had a reasonable basis for acting as he or she did, whether the employer can show a substantial interest in the rule and its enforcement, and whether the discipline imposed appears disproportionate to the asserted interest. Where the employer's reporting requirements are unreasonable, unduly burdensome, or enforced with unjustifiably harsh sanctions, they may result in inaccurate injury records, and a referral for a recordkeeping investigation should be made.

-An employer which imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee as pretext for discrimination claim because of the injury.

-Establishing programs that unintentionally or intentionally provide employees an incentive to not report injuries. An employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or "near misses". OSHA's VPP Guidance materials refer to a number of positive incentives, including providing tee shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training. See Revised Policy Memo #5 - Further Improvements to VPP (June 29, 2011).

OSHA has also observed that the potential for unlawful discrimination under all of these policies may increase when management or supervisory bonuses are linked to lower reported injury rates.

http://www.osha.gov/as/opa/whistleblowermemo.html