On Dec. 1, 2016, new OSHA regulations aimed at “nudging” employers into creating safer workplaces went into effect. Of particular significance are the new anti-retaliation provisions, which may require changes to employers’ worksite safety incentive programs.
The anti-retaliation provisions in the Occupational Safety and Health Administration’s new regulations seek to encourage employees to report work-related injuries and illnesses to their employers. The regulations explicitly prohibit employers from retaliating against employees who report injuries and illnesses, and impose requirements on employers to make sure their policies do not discourage employees from reporting issues. Specifically, the new anti-retaliation provisions require employers to:
- Inform employees of their right to accurately report work-related injuries and illnesses without employer retaliation or discrimination.
- Make employee reporting procedures “reasonable” for work-related injuries and illnesses by not deterring or discouraging reports.
- Refrain from retaliating against employees for making reports of work-related injuries and illnesses.
A specific example cited in the regulations that will be targeted for enforcement are incentive programs. Many employers have programs that reward employees for achieving certain benchmarks in days, weeks or months without an injury. OSHA has indicated that such a program could “discourage or deter a reasonable employee from reporting the work-related injury or illness.” Because such programs may have a deterrent effect, they are impermissible.
However, employers may still offer incentive programs based on employees following legitimate safety rules instead of whether or not an employee reported a work-related injury or illness. OSHA suggests that employers consider programs rewarding employees for participating in safety program activities and evaluations; completing safety and health training; reporting and responding to hazards, close calls and near misses; engaging in safety walkthroughs and identifying hazards; following planned preventive maintenance schedules; and complying with legitimate safety rules.
To illustrate an incentive program that would violate OSHA’s new regulations, say a sheet metal fabrication company has an incentive program where it gives employees a pizza party once a month if there are no work-related illnesses and injuries reported. However, if an employee reports a work-related illness or injury, the company will cancel the pizza party that month. Such a program would violate the new regulations. Employees could choose to not report a work-related illness or injury because they do not want to be responsible for the cancellation of the pizza party.
In light of these rules, a company could revise its policy to only cancel the pizza party if an employee failed to comply with a safety rule. The company would have to actively monitor its employees to ensure that they were following all of the safety rules. If an employee fails to wear safety glasses, gets injured and reports the injury, the company could cancel the pizza party because an employee did not follow legitimate safety rules.
The rationale for canceling a reward is important. If employees routinely fail to wear safety glasses and the company only canceled the pizza party because an employee reported an injury, the company would likely have breached OSHA’s anti-retaliation rules. Employers must be sure that any reward is canceled only for violation of a legitimate safety rule, not for reporting an illness or injury.
Incentive programs can be great for both employee morale and fostering an emphasis on workplace safety, but employers should review their incentive program policies to ensure that they are in compliance with OSHA’s new regulations and revise them as necessary.
Attorney Michael McNally is a shareholder with the Minneapolis law firm Felhaber Larson, and practices in the areas of labor law and employee benefits, with extensive experience in the construction industry. He is labor council for the Sheet Metal and Air-Conditioning Contractors’ National Association.