Michael R. Lied

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The Occupational Safety and Health Administration has begun to take an interest in certain safety incentive programs. Assistant Secretary of Labor for OSHA, David Michaels, has voiced concerns over these programs, asserting they may undermine a workplace culture of safety. Historically, many employers have used incentives to promote employee safety.

OSHA’s position was foreshadowed in a March 12, 2012 Memorandum from Richard E. Fairfax, Deputy Assistant Secretary of OSHA. Fairfax pointed out that Section 11(c) of the OSH Act prohibits an employer from discriminating against an employee because the employee reports an injury or illness. Fairfax said that if employees do not feel free to report injuries or illnesses, the employer’s entire workforce is put at risk.

According to Fairfax, there are several types of workplace policies and practices that could discourage reporting and therefore could constitute a violation of Section 11(c) and other whistleblower protection statutes. Some of these policies and practices may also violate OSHA’s recordkeeping regulations.

Potentially discriminatory policies practices include:

1. An employer maintains a policy of taking disciplinary action against employees who are injured on the job. OSHA views discipline imposed under such a policy against an employee who reports an injury as a direct violation of Section 11(c). Such a policy is inconsistent with the employer’s obligation to establish a way for employees to report injuries.

2. An employee who reports an injury or illness is disciplined, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. Such procedures must be reasonable and may not unduly burden the employee’s right and ability to report. For example, such 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. An employee reports an injury, and the employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee. In some cases, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury.

4. An employer establishes a program that unintentionally or intentionally provides employees an incentive 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 incentive programs might be well-intentioned. However, according to Fairfax, there are better ways to encourage safe work practices, such as (1) incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or “near misses;” (2) positive incentives, including providing tee shirts to workers serving on safety and health committees; (3) offering modest rewards for suggesting ways to strengthen safety and health; or (4) throwing a recognition party at the successful completion of company-wide safety and health training.

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.

Fairfax concluded that if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program could result in the employer’s failure to record injuries that it is otherwise required to record.

· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com