Rewarding employees for not having accidents or illnesses at work is just one of the scenarios Eric Hobbs says could get you into hot water with the Occupational Safety & Health Administration (OSHA). Hobbs, partner at Michael Best & Friedrich LLP wrote a blog entry for National Law Review this week outlining the risks-employers take with certain safety incentive programs. Referencing OSHA's two-year-old memo "Employer Safety Incentive and Disincentive Policies on Practices," Hobbs says incentive programs can unlawfully discriminate under the Occupational Safety & Health Act, or violate OSHA's rules about keeping records of injuries and illnesses.

"The kinds of incentive programs OSHA hates are those that the Agency (and unions) referred to as 'blame the worker' safety programs," that effectively punish employees for being injured or for reporting injuries, Hobbs says. “OSHA’s definition of 'punishment,' however, is a bit broader than that of the man on the street," he adds. "It includes, for instance, an employer’s failure to give its employees things that otherwise would have been given them had no employee been injured on the job or reported any such injury."

In some cases, employers may be unaware that their safety programs disincentivize injury reporting. "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," OSHA notes in its memo. Such programs might be viewed as efforts to encourage their workers to use safe practices, when they actually disincentivize employees from reporting injuries.

Other examples from the memo include:

  • Employers with policies to take disciplinary action against employees who are injured on the job. According to OSHA, "reporting an injury is always a protected activity," and "discipline imposed under such a policy against an employee who reports an injury as a direct violation."
  • Employers who state untimeliness or incorrect manner of reporting as reason for discipine over an injury or illness. While OSHA says it realizes employers have a legitimate interest in establishing reporting procedures, to be consistent with the statute the procedures can't remove the employee's right to report. "For example," OSHA says, "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."
  • Employers who impose discipline based on injuries that resulted from violating a workplace safety rule. While OSHA says it encourages employers to "maintain and enforce" legitimate workplace safety rules, careful investigations are necessary if violations of those rules become pretext for discrimination against an employee. For example, OSHA would look into whether or not the employer consistently monitors for workplace compliance even in the absence of injuries, whether or not equivalent discipline is handed out in call cases, and the specificity or vagueness of the rule itself. "Vague rules, such as a requirement that employees 'maintain situational awareness,' or 'work carefully' may be manipulated" to suit the situation.

Hobbs suggests that employers should revisit their safety programs with a few questions in mind to ensure the incentives and disincentives are within OSHA's guidelines. "Whether employers believe OSHA’s policy to be reasonable or not, OSHA’s compliance officers are reviewing safety incentive programs as part of inspections of all kinds," Hobbs says. "It would be wise to review any safety incentive program ... for any elements of the kind OSHA hates and, to the extent feasible, modify the program."
Here are four questions Hobbs says employers should ask:

  1. Might (not does, but might) the program I have incentivize my employees not to report on-the-job injuries or illnesses?
  2. Does my program focus just on the fact that an injury or illness occurred on the job or was reported, or does it focus instead on the conduct that led to the injury or illness?
  3. Does my program punish or reward employees who cause near misses, as well as those who report accidents and injuries?
  4. Are near misses treated as being as important an element of my program as reported injuries and illnesses are?

Hobbs says incentive programs "that focus only on the fact of injury or illness are the riskiest under OSHA’s policy." The focus, he says, should instead be on the employee conduct to jive with OSHA's policy. Hobbs adds, "programs that focus on employee conduct also tend to be the most effective, even if they are a bit more cumbersome to administer because they require more information and discretion."