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Seeking Balance: OSHA Reconsiders its Opposition to Safety Incentive Programs

How does an employer incentivize employees to operate safely but not interfere with the reporting of workplace incidents? Although the Obama administration never explicitly prohibited safety incentive programs that awarded bonuses for no recordable injuries, it stated that these programs may violate OSHA’s anti-retaliation provisions.

Recognizing that safety incentive programs can promote workplace safety, OSHA under the Trump administration has clarified the agency’s position on such programs. While OSHA still contends programs that only reward employees with prizes or bonuses when no injuries are reported can be problematic, OSHA noted that it would not cite an employer if the employer can show that it is serious about creating a culture of safety and not just about reducing reported injuries.

In its most recent guidance, OSHA has offered several examples of how an employer can make a “bonuses for no injuries program” meet regulatory muster. OSHA suggests, for example, that the employer also have an incentive program that rewards employees for reporting near-misses or hazards. Such a program would counter any deterrent message from a reward program that only provides a bonus to a workforce when no injuries are reported. Similarly, robust training programs that reinforce employee reporting obligations and responsibilities would also be considered as evidence of the employer’s commitment to safety. Finally, OSHA noted that it would consider the employer’s “mechanisms for accurately evaluating employees’ willingness to report injuries and illnesses.”

I think OSHA has finally struck the right balance. An employer’s goal should be to have “zero reportable injuries” and not simply “zero injuries that were reported.” A comprehensive safety incentive program is more likely to accomplish this goal.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.