The Occupational Safety and Health Administration (OSHA), the federal agency charged with assuring safe and healthy working environments, recently issued a memorandum which takes aim at employer safety incentive policies and practices. According to OSHA, some of the programs which employers frequently implement as a way to encourage safe workplace practices may be viewed by the agency as discouraging employees from reporting job-related injuries.The stated purpose of the March 2012 memorandum issued by DOL Assistant Deputy Secretary Richard Fairfax is 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.” Section 11(c) of the Occupational Safety and Health Act specifically prohibits an employer from discriminating against any employee because the employee reports a work-related injury or illness.

The OSHA memo voiced concerns that safety programs which provide some sort of an incentive – particularly those with rewards such as financial bonuses or prizes – may intentionally or unintentionally provide employees an incentive NOT to report injuries. It goes on to say that, as a result, workplace safety may be compromised, those who report injuries may be subject to unlawful discrimination or harassment, and “whistleblowers” may be unfairly targeted for retaliation. OSHA also states that the policies and practices of these safety programs may violate recordkeeping regulations, specifically the requirement associated with employee injury reporting.

Article authored by McAfee & Taft Attorney: Nathan Whatley.