Feature Article - March/April 2019

Safety First

Structured Programs Help Meet Safety Goals

By Deborah L. Vence

Legal Requirements

Regarding worker safety, OSHA's rules outline the agency's main concerns about such programs and cite what is not permissible.

"For example, OSHA published a final rule that, among other things, added a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses," said Steve Slagle, managing director of the Incentive Federation. "In the preamble to the final rule and post-promulgation interpretive documents, OSHA discussed how the final rule could apply to action taken under workplace safety incentive programs and post-incident drug testing policies."

Action that is taken under a safety incentive program or post-incident drug testing policy would only violate OSHA's rule if the employer took the action to penalize an employee for reporting a work-related injury or illness, rather than for the legitimate purpose of promoting workplace safety and health.

"… The type of incentive program that rewards workers for reporting near-misses or hazards and encourages involvement in a safety and health management system is always permissible," Slagle said. "Rate-based incentive programs are also permissible, as long as they are not implemented in a manner that discourages reporting.

"Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness," he added.

McEndree added that safety incentive program compliance regulations are ever-changing.

"At the same time, employees are demanding a reward experience with as little friction as possible," she said.

Safety programs can assist in the recruiting process and help sway new talent to join the organization.

"Employers wanting to take advantage of the benefits of safety incentive programs while meeting their employees' expectations for a user-friendly reward experience need to be well-equipped to handle constantly evolving regulations. The reality is many are not. Working with an experienced partner can help employers stay on top of compliance regulation," she said.

Dolan noted that there are tax laws and standards that the IRS has mandated under tax code 274j that need to be referenced before establishing the program's design and goals.

"Individual state legislature needs to be referenced as well. One should also review OSHA's guidelines and expectations especially avoiding any endeavor or practice that may be viewed as 'discriminatory.' A great resource is a review of OSHA's VPP (Voluntary Protection Program)," he said.

"The OSHA guidelines," Chrobak said, "require all employers with more than 10 employees, and whose establishments are not classified as a partially exempt industry, to report work-related injuries and illnesses, and they must post statistics annually. This is one of the primary ways that employers and OSHA measure workplace safety metrics. Therefore, it is critical that any safety recognition program is designed by someone that understands safety guidelines as they apply to these types of programs, and do not deter reporting of workplace injury or illness, nor punish employees when they do report.

"If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk, employers cannot correct dangerous conditions, and injured employees may not receive the proper medical attention or other benefits they may be entitled to," she said. "Additionally, programs that encourage non-reporting of injury or illness in the workplace, even if it is unintentional, it would result in the employer's failure to record injuries as required, and could result in an investigation by OSHA."

Galonek added that "OSHA's position on safety incentive programs has evolved over the years, especially recently."

In its most recent "clarification on OSHA's position on workplace safety incentive programs…" the agency makes it clearer than ever that it is not against the use of such programs, but instead, in favor of them as long as they are properly built.

"So, what are the elements of a "properly built" program? They should not be cash-based (disguised compensation), but instead should use tangible awards that are far more memorable," he said. "They should not feature overly large awards (like a pickup truck) offered in a sweepstakes where one winning name is pulled from a hat and they should not tie all workers together (where one person's accident penalizes an entire group), which creates negative peer pressure. They instead should reward individuals for their individual behavior and focus not just on performance, but also on proactive safe behavior; or going 'above and beyond' for safety."