This post was contributed by Jennifer E. Will, Esq., a Member in McNees Wallace & Nurick LLC’s Labor and Employment Law Group.
While you are busy with the required Hazard Classification Training that we told you about last week, you might want to make time to review any safety incentive programs that you have in place.
Last March, OSHA issued a controversial internal Memo on Employer Safety Incentive and Disincentive Policies. In a nutshell, OSHA’s Deputy Assistant Secretary gave Regional Administrators and Whistleblower Program Managers another target – employers who reward employees for safety!
OSHA’s Section 11(c) prohibits employers from retaliating against employees who report an injury or illness. Reporting an injury is protected activity under the statute and employers are required, by regulation, to establish a way for employees to report injuries.
Much of the Memo is devoted to employers who discipline employees for reporting injuries (which we are sure you do not do), but a portion of the Memo addresses employer programs that, intentionally or unintentionally, provide employees with an incentive not to report injuries. Some examples:
- All employees who are injury-free will be entered into a prize drawing;
- Team members will be awarded a bonus if the team stays injury-free.
Although the employer’s intentions may be pure, such programs and policies may encourage employees to not report their injuries.
Instead of rewarding employees for staying injury-free, the OSHA-recommended approach is to reward employees for their safe practices, such as:
- identifying safety hazards;
- joining a safety committee;
- suggesting ways to strengthen existing safety policies; or
- completing company-wide safety and health training.
Bottom line, if an incentive is big enough that the risk of not earning it would dissuade an employee from reporting an injury or illness, you may have a Section 11(c) violation according to OSHA. To the extent that injuries are not reported, you could also wind up with a record keeping violation.
This Memo is getting traction. The DOL recently entered into a formal settlement agreement with an employer over its safety program, which correlated employee incentive payments to OSHA recordables.
In short, OSHA would like employers to incentivize employees to: report injuries; participate in safety initiatives; and make improvements to safety and health in the workplace, without seeming to create an incentive to not report.
Please contact any of the McNees Labor & Employment attorneys for assistance with reviewing your safety incentive programs for compliance.