OSHA & Employee Safety Incentive Programs

Section 11(c) of the OSH Act prohibits an employer from discriminating against an employee due to an employee reporting 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.

If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk. This can mean that employers do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention or the workers' compensation benefits to which they are entitled. Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health.

Incentive programs, such as point systems, awards, and prizes, are common workplace programs, but these should be designed in a manner that does not discourage injury and illness reporting; otherwise, hazards may remain undetected.  Incentive programs that discourage employees from reporting their injuries are problematic for a few reasons:

• 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.

• FRSA similarly prohibits a railroad carrier, contractor, or subcontractor from discriminating against an employee who notifies, or attempts to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury.

• 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. One important factor to consider is whether the incentive involved is of sufficient magnitude that failure to receive it "might have dissuaded reasonable workers from" reporting injuries. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).

• 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.
  • If the employer is a railroad carrier, contractor, or subcontractor, a violation of FRA injury-reporting regulations may have occurred and a referral to the FRA may be appropriate. This may be more likely in cases where an entire workgroup is disqualified because of a reported injury to one member, because the injured worker in such a case may feel reluctant to disadvantage the other workgroup members.

There are many ways to include highly effective incentive programs that will help all parties and not diminish the likelihood of reporting injury or illness. For more information on acceptable incentive plans, contact your AssuredPartners team today.