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Many employers utilize incentive programs to reward employees for compliance with company safety policies. Many of these programs utilize a system of rewards based upon the number of consecutive days a facility has been without a reportable work-related accident or illness. New OSHA anti-retaliation regulations make such programs violations of OSHA standards subjecting employers to legal sanctions even without the filing of an employee complaint.

New anti-retaliation regulations are intended to emphasize OSHA’s prohibition against employers taking adverse action against employees simply because they report work-related injuries or illnesses. How does this impact safety incentive programs? OSHA has specifically held that an incentive program which withholds a benefit (such as a cash prize, gift certificate or other substantial reward) in the event of an injury or illness report, violates its anti-retaliation rules. For example, an employer’s promise to raffle off a gift card at the end of each month in which no employee sustains an injury requiring the employee to miss work, is a violation of the anti-retaliation rules.

Do OSHA’s revised anti-retaliation rules mean the end of employer-sponsored safety incentive programs? No; the new rules are not a blanket prohibition against workplace safety incentive programs. Instead, the rules provide for close scrutiny of employer incentive programs to make certain they do not operate to limit the reporting of injuries and illnesses by employees.

It is quite possible to craft a safety incentive program which meets the new anti-retaliation requirements. For example, an incentive program rewarding employees each month for the proper use of fall protection, lockout-tagout procedures, etc. would be compliant with the new regulations. So too would be incentive awards for the completion of extra safety training.

Employers are urged to review their safety incentive programs to determine if they are currently in compliance with OSHA’s new anti-retaliation regulations. If they are not in compliance, immediate efforts should be undertaken to revise the incentive programs. Failure to take action to correct non-compliant programs places the employer at risk for substantial penalties.

Poyner Spruill partner Tom Davis has extensive experience defending OSHA citations, reviewing and revising safety programs and providing safety training. For questions about this alert you can reach Tom at tdavis@poynerspruill.com or 919.783.2816.

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