You consider your company's safety incentive program a harmless and effective way to promote safe behavior among your employees and reduce injuries. But OSHA could see the very same program as unlawful discrimination and a violation of OSHA recordkeeping regulations and whistleblower protections.
OSHA regards the ability to report injuries or illnesses without fear of retaliation as "crucial to protecting worker safety and health." Without that right, "Employees do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention or the workers' compensation benefits."
Earlier this year, OSHA released a memorandum to compliance officers and whistleblower investigative staff that outlined "employer practices that can discourage employee reports of injuries and violate section 11(c), or other whistleblower statutes."
According to the memo, certain incentive programs discourage the reporting of injuries and encourage discrimination against workers who report injuries. These include:
1. Taking disciplinary action against all employees who are injured on the job, regardless of circumstances. Reporting an injury is always a protected activity, and OSHA views discipline against an employee who reports an injury as a direct violation of whistleblower statutes.
2. Taking disciplinary action against an employee who violates an employer rule about the time or manner for reporting injuries and illnesses. OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. However, such procedures must be reasonable and may not unduly burden the employee's right and ability to report. For example, 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.
3. Disciplining an injured employee because the injury resulted from his/her violation of a safety rule. OSHA encourages legitimate workplace safety rules to eliminate or reduce workplace hazards and prevent injuries. In some cases, however, an employer may use a work rule as a pretext for discrimination against a worker who reports an injury. OSHA will investigate these situations carefully, looking at whether the employer monitors for compliance with the work rule in the absence of injury and whether it consistently disciplines employees who violate the work rule in the absence of an injury. Enforcing a rule more stringently against injured employees than noninjured employees may suggest that the rule is a pretext for discrimination against an injured employee.
4. Creating a program that unintentionally or intentionally incentivizes employees to not report injuries. For example, 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 to encourage workers to use safe practices. However, there are better ways to encourage safe work practices.
Acceptable Safety Incentives
A safety incentive program structured to recognize and reward positive behaviors, rather than punishing negative ones, is less likely to draw the wrath of OSHA. Suggestions include:
· Providing tee shirts to workers serving on safety and health committees
· Offering rewards for suggesting ways to strengthen safety and health
· Throwing a recognition party at the successful completion of company-wide safety and health training
For more suggestions on structuring a safety program, please contact the PCOC Insurance Program department of Jenkins Insurance Services at (877) 860-7378.