Latest OSHA Memorandum: Safety Incentives Are Permitted

On Tuesday, November 13th, 2018

In a memo released last month, OSHA clarified that post-incident drug testing and safety incentive programs are not prohibited by the anti-retaliation provisions under OSHA’s electronic record keeping rule, which became effective December, 2016.

OSHA’s recent memo clarified the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.

The Department believes that many employers who implement safety incentive programsdo so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. 

Action taken under a safety incentive program…would only violate 29 C.F.R. § 1904.35(b)(1)(iv) 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.”

As a further explanation in the October 11th Memorandum, OSHA stated that incentive programs that seek reductions in the number of injuries and illnesses reported, or rate-based programs, are permissible if they do not discourage reporting — adding that employers who withhold a prize because of an injury report are not in violation as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

Safety Pays approach to motivating employee safety awareness does just that – provide not just ‘adequate precautions’, but a multi-layered set of injury reporting safeguards.   Our OSHA Compliance and Non-Reporting of Injuries videos explain how this is accomplished in detail.

Encouraging employee safety awareness has always been encouraged by OSHA, including the active use of safety incentive programs to drive employee interest and commitment to a safe workplace.   For well over 25 years, Safety Pays has succeeded in doing just that.