Update- OSHA Memorandum on Safety Incentive Disincentive Policies

OSHA Director David Michaels has responded to PMPA’s letter challenging several aspects of the OSHA  March 12, 2012 Memorandum  on Employer Safety Incentive and Disincentive Policies and Practices.  

PMPA felt that the guidance document removed employer authorities  to use safety incentives and tools  (such as discipline for failure to report injuries) to assure that employers could meet their obligations to maintain a safe workplace.  We challenged the memorandum in a letter to Director Michaels on April 18, 2012.

Director Michaels replied with a letter July 30, 2012, in which he “whole-heartedly agrees” with the use of incentives  to encourage positive behaviors and that OSHA “recognizes the employers’ legitimate interest in establishing procedures for receiving and responding to reports of injuries and nothing in the memo is intended to undermine that interest.”

Employer’s rights to discipline  and offer limited incentives are maintained.

However, Director Michaels maintains that  “Programs that give awards based on an employee or work unit not having any reported injuries are likely to have the reverse effect of incentivizing workers to simply not report their injuries. When injuries are not reported, as noted above, employers are without information that will help them protect their other employees and insure the injured employee receives appropriate treatment. In programs that penalize an entire workgroup because a single member reports an injury, the effect may be magnified because workers are often especially reluctant  to report an injury if the that report will have a negative effect on their colleagues as well as themselves. In addition, if the employer fails to record an injury because the employee does not report it, the employer is in violation of OSHA’s recordkeeping requirements.”

Use of affirmative incentives for achieving safety goals is likely to be targeted by OSHA as discriminatory unless it can be shown that the awards do not dissuade personnel from reporting injuries.

Bottom Line: Employers may continue to discipline employees who fail to report injuries appropriately.  Positive incentives for safety performance remain targeted by OSHA as potentially discriminatory and dissuasive of reporting injuries.

PMPA has prepared a one page summary of the Director’s comments.

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