Punishing good deeds

Many employers believe that they are furthering safety and health in their workplaces by providing incentives to their workforce for not incurring time-lost injuries. Many employers have, in good faith, developed programs that will incent their employees for having a certain number of days without a lost time accident by providing prizes, bonuses at the completion of projects or "safety bucks" or other incentives that employees can use to purchase safety gear, or even other items with the earned "bucks." Admirable, right? Not in OSHA's eyes!

In an OSHA memorandum to Regional Managers and Whistleblower Program Managers, dated March 12, OSHA clearly takes aim at these programs and a huge red flag has to go up to any employers that have adopted such policies and are currently using them. The memorandum begins by saying "Section 11(c) of the OSH Act prohibits an employer from discriminating against an employee because the employee reports an injury or illness. 29 CFR 1904.36. This memorandum is intended to provide guidance to both field compliance officers and whistleblower investigative staff on several employer practices that can discourage employee reports of injuries and violate section 11(c), or other whistleblower statutes."

In the memo, OSHA tells its regional directors that incentive programs as discussed above "could discourage reporting [of injuries and illnesses] and could constitute unlawful discrimination and a violation of 11(c) and other whistleblower protection statutes." Section 11(c) of the OSH Act is the provision that provides that "No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act."

Who says that good deeds go unpunished? Many employers have developed and spent valuable dollars and resources incentive programs that reward their employees for safe workplace conduct that will result in fewer lost-time injuries. Now, OSHA had determined that these very policies actually create a "disincentive" to report injuries or illnesses and hence are violative of section 11(c) of the OSH Act.

So in its guidance to regional managers, the memorandum specifically identifies the programs discussed above. The memorandum states that often employer incentive programs may "unintentionally or intentionally" provide an incentive not to report injuries. The example given in the memorandum is that an employer may elect to enter all employees who have not been injured in the previous year to be entered into a drawing to win a prize, or, a team of employees may be awarded a bonus if no one of the team is injured over the same period of time.

Even acknowledging that employers may be "well-intentioned" in the development of such programs, the memorandum states that such programs are "problematic" because employers may not "in any manner discriminate" against an employee because an employee exercises a protected right such as reporting an injury or illness. The memo directs that "If an employee of a firm with a safety incentive program reports an injury, the employee, or the employee's entire work group, will be disqualified from receiving the incentive, which could be considered unlawful discrimination." This may be enough, in OSHA's mind to dissuade reasonable employees from reporting workplace injuries or illnesses and could not only result in a violation of the previously discussed provisions of 11(c), but also result in a finding that the employer has failed to record injuries and illnesses as required under the recordkeeping and reporting provisions of 29 CFR 1904.

The memorandum states that if a compliance safety and health officer believes that such "incentive" programs are actually "disincentive" programs, then "the employer is violating that rule, and a referral for a recordkeeping investigation should be made."

Right when you thought that you were doing the right thing! Employers need to immediately look at these programs, and consult with their OSHA consultant or legal counsel to determine whether they are at risk because of their otherwise "well-intentioned" incentive policies. With the aggressive anti-business posture that OSHA has taken in the past three years, prudent employers must be concerned now that these policies, that in many cases may have been promoted by the health and safety team, or even their own employee safety committee, may now be fodder for an OSHA citation and fine.

(The OSHA memorandum in its entirety can be found at http://tinyurl.com/6mogkg2.)

John Skowronek is an OSHA authorized trainer and safety consultant with Square One Solutions in Reno. Contact him at www.worksq1.com or follow him on twitter @KnotheadNed.