NEWS: OSHA issues memorandum on safety incentive and disincentive policies and practices

By Rudman Winchell Attorney

Recently, OSHA issued a memorandum to its Regional Administrators and Whistleblower Program Managers addressing Employer Safety Incentive and Disincentive Policies and Practices.

The memorandum sets forth potential practices that can discourage employee reports of injuries and violate Section 11(c) of OSHA; it notes that incentive programs that discourage employees from reporting their injuries are “problematic because, under section 11(c), an employer may not ‘in any manner discriminate’ against an employee because the employee exercises a protected right, such as the right to report an injury.”

One of the practices discussed entails programs that “unintentionally or intentionally provide employees an incentive to not report injuries.”

The memorandum uses the example of an employer who enters all employees who have not been injured in the previous year in a drawing to win a prize, or providing a team of employees a bonus if no one from the team is injured over some period of time. Although the memorandum recognizes that such programs might be “well-intentioned efforts by employers to encourage their workers to use safe practices”, it also states that “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'”.

The memorandum further points out that “if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer’s failure to record injuries that it is required to record under Part 1904. In this case, the employer is violating that rule, and a referral for a recordkeeping investigation should be made.”

In addition, some of the practices mentioned in the memo that may violate OSHA include taking disciplinary action against employees who have a work-related injury. The memo confirms that reporting an injury is “always” a protected activity and that discipline of an employee who reports an injury is a direct violation of the Act. The memo also states that discipline of an employee who reports an injury because of the “time or manner” of reporting the injury deserves “careful scrutiny” by the agency. Although it recognizes that employers have a “legitimate interest in establishing procedures for receiving and responding to reports of injuries”, “such procedures must be reasonable and may not unduly burden the employee’s right and ability to report.” As an example, the memo states that “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.”

Finally, the memo states that discipline of an employee who reports an injury on the ground that the injury resulted from a violation of a safety rule will be scrutinized. It recognizes that although employers are encouraged “to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place”, such application of work rules cannot be used as a pretext for discrimination.

The summary provided here is only a portion of the memorandum. The document can be found at http://www.osha.gov/as/opa/whistleblowermemo.html.
 

Disclaimer


These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.