Incentive Programs from OSHA’s Perspective

Jim Shelton, CAS, HNAO

Case in the News

OSHA Memorandum

• March 12, 2012 Memorandum – Employer Safety Incentive and Disincentive Policies and Practices– Section 11(c) of the OSHA Act prohibits an

employer from discriminating against an employee because the employee reports an injury or illness

– Reporting a work-related injury or illness is a core employee right

OSHA Memorandum

• If employees do not feel free to report injuries and illnesses the entire workforce is put at risk

• Employers do not learn of and correct dangerous conditions that have resulted in injuries

• Injured employees may not receive proper medical attention or workers compensation benefits they are entitled

OSHA Memorandum

• There are several types of workplace policies and practices that discourage reporting and could constitute unlawful discrimination or violate OSHA’s requirement that employees have a way to report work related injuries and illnesses

• OSHA believes that the potential for discrimination mat increase when management or supervisory bonuses are linked to reported rates

Case in the News

Scenario 1

• Employer has a policy of taking disciplinary action against employees who are injured on the job regardless of circumstances– Reporting an injury is a protected activity– OSHA views discipline imposed under such a

policy as a direct violation of 11(c)– An employer’s policy to discipline all

employees who are injured regardless of fault is not a legitimate reason to justify adverse action

Scenario 1

– Such a policy is inconsistent with the employer’s obligation to establish a way for employees to report injuries under 1904.35(b)

– When encountered a referral should be made for a recordkeeping investigation

Scenario 2

• An employee who reports and injury or illness is disciplined and the reason is ‘the employee has violated an employer rule about the time and manner for reporting injuries and illnesses’– Such a case deserves careful scrutiny

because the act of reporting the injury directly results in discipline shows a clear potential for violating 11(c)

– OSHA recognizes there is a legitimate interest for receiving and responding to reports of injuries

Scenario 2

– However… such procedures must be reasonable and may not unduly burden the employees right and ability to report

– For example, rules can’t penalize workers who do not realize immediately that their injuries are serious enough to report, or that they are even injured at all

– The rule can’t be a pretext for discrimination– Factors that may be considered…

Scenario 2

– Whether the employees deviation from the procedure was minor or extensive, inadvertent or deliberate…

– Did the employee have a reasonable basis for acting as they did…

– Can the employer show a substantial interest in the rule and its enforcement…

– Was the discipline disproportionate to the asserted interest…

Scenario 2

– Where the employers reporting requirements are unreasonable, unduly burdensome, or enforced with unjustifiably harsh sanctions it may result in inaccurate injury records and a referral for a recordkeeping investigation should be made

Scenario 3

• An employee reports an injury and the employer imposes discipline on the grounds that the injury resulted from the violation of a safety rule– OSHA encourages the maintenance and

enforcement of legitimate workplace safety rules in order to eliminate or reduce hazards and prevent injuries from occurring

– However, a work rule may be a pretext for discrimination against an injury reporting employee

Scenario 3

– Several circumstances are relevant…– Does the employer monitor for compliance

with the work rule in the absence of an injury?– Is consistent equivalent discipline imposed

against employees who violate the work rule in the absence of an injury?

– Is the rule vague… e.g. ‘maintain situational awareness’… ‘work carefully’…. The rule can be manipulated and used as a pretext

Scenario 3

– When general rules are involved the investigation should include an examination of whether and how the employer applies the rule in situations that do not involve an employee injury

– Enforcing a rule more stringently against injured employees than noninjured employees may suggest the rule is a pretext for discrimination under 11(c)

Scenario 4

• Some employers establish programs that unintentionally provide employees and incentive to not report injuries– For example an employer might enter all

employees who were not injured the previous year into a drawing to win a prize, or a team of employees may be awarded a bonus if no one from the team is injured over a period of time

Scenario 4

– These programs may be well intentioned but may result in unreported injuries…

– Incentive programs that discourage employees from reporting their injures are problematic because under 11(c) an employer cannot ‘in any manner discriminate’ because an employee exercises a protect right..

– If the incentive is great enough that the loss dissuades employees from reporting injures it could lead to failure to record injuries

Scenario 4

– In that case the employer is violating that rule, Part 1904, and a referral for a recordkeeping investigation should be made

– When an entire work workgroup is disqualified because of a reported injury to one member that could dissuade employees from reporting because they may be reluctant to disadvantage other workgroup members and it could be considered discrimination

Kinds of Incentives does OSHA Encourage?

• Promoting worker participation in safety related activities such as…– Encouraging the reward of leading indicator factors– Identifying workplace hazards– Participating in injury, incident, and near-miss

investigations– T-Shirts for participating on safety committees– Modest rewards for safety program

improvement suggestions

Kinds of Incentives does OSHA Encourage?

– Recognition party for successful completion of company wide safety and health training

• The thing to keep in mind is what is the incentives or disincentives rewarding… encouraging or discouraging…. What is the effect….

What Effect did the Shaw Case Have?

• The 80+ injuries including broken bones, torn ligaments, hernias, lacerations, and shoulder, back, and knee injuries not properly recorded

• Some employees testified they were denied or delayed proper medical treatment– “The defendant’s practices affected the safety of

the work environment of nuclear sites. They resulted in employees becoming reluctant to report injuries, employers failing to address safety issues on the work sites, and employees working through medical conditions that created risks of additional injuries to themselves and others”

HNAO Items of Interest

• Workshops at area libraries on topics such as RK, OSHA, SHMS, Forklifts, Intro to OSHA...

• Pipe Best Practices Work Group• National STEPS/OSHA Safety Standdown for

Oil and Gas Exploration and Production– November 14th launch– www.oshastanddown.org

Where is OSHA Located?

Houston North Area Office:

Jim Shelton507 N. Sam Houston Pkwy

E. Ste. 400Houston, TX 77060281-591-2438shelton.james@dol.gov

Disclaimer

• This information has been developed by an OSHA Compliance Assistance Specialist and is intended to assist employers, workers, and others as they strive to improve workplace health and safety. While we attempt to thoroughly address specific topics [or hazards], it is not possible to include discussion of everything necessary to ensure a healthy and safe working environment in a presentation of this nature. Thus, this information must be understood as a tool for addressing workplace hazards, rather than an exhaustive statement of an employer’s legal obligations, which are defined by statute, regulations, and standards. Likewise, to the extent that this information references practices or procedures that may enhance health or safety, but which are not required by a statute, regulation, or standard, it cannot, and does not, create additional legal obligations. Finally, over time, OSHA may modify rules and interpretations in light of new technology, information, or circumstances; to keep apprised of such developments, or to review information on a wide range of occupational safety and health topics, you can visit OSHA’s website at www.osha.gov.