Many employers, as a means of promoting workplace safety, give their workers and departments bonuses or other rewards for having fewer injuries or incidents, or in practical terms, reporting fewer injuries or incidents.
Or at least more employers used these incentive programs prior to 2016, when the Occupational Safety and Health Administration issued guidance that seemed to largely interpret them as unlawfully discouraging workers from reporting injuries. OSHA has now clarified its position on safety incentive programs as well as drug testing practices, but in a way that employment attorneys say should make employers less nervous to implement those programs.
On October 11, OSHA issued a memorandum clarifying that its anti-retaliation rules don’t prohibit employers from having workplace safety incentive programs or for drug testing workers after an incident. This had been a concern among employers ever since OSHA introduced a rule in May 2016 that banned them from retaliating against workers for reporting a workplace injury. In that rule’s preamble, the agency said certain drug testing practices, as well as programs that reward workers for reducing or eliminating injuries, could chill workers from reporting incidents and therefore be grounds for OSHA enforcement action.