EHS Management

Does Your Incentive Program meet OSHA’s Draft Safety and Health Program Management Guidelines?

In OSHA’s 1989 Safety and Health Management Program Guidelines, “Management commitment and employee involvement” were a single major element. In its proposed revisions, OSHA has broken out “worker participation” into its own section and greatly expanded it. In the new section, OSHA has targeted two common employer practices— incentive programs and postincident drug testing—as having the potential to “discourage” worker participation and undermine accident and injury reporting.

Employers are unhappy with the change, and some of the comments on the proposed guidelines reflect their displeasure. Here’s what OSHA has to say about worker participation and what employers and labor representatives have to say about OSHA’s hard line.

The Original Guidelines

The 1989 Guidelines had little to say about employee involvement. The major employee involvement initiative recommended in those guidelines is for employers to provide a system for workers to report observed hazards “without fear of reprisal,” and to encourage workers to use it. That recommendation remains in the revised guidelines— but not alone.

Worker Participation and Safety Incentive Programs

When OSHA revised its guidelines, it broke out “employee involvement” from “management commitment and employee involvement” into its own section, titled “Worker Participation,” with five detailed “action items”:

  • Encourage workers to report safety and health concerns.
  • Encourage workers to participate in the program.
  • Involve workers in all aspects of the program.
  • Give workers access to safety and health information.
  • Remove barriers to participation.

Most of these goals were in the 1989 guidelines, although they were in an abbreviated form. In the revised guidelines, each action item includes multiple suggestions for “how to accomplish it.” For the most part, these are commonsense recommendations, but employers have taken issue with a footnote in the introduction to the section and in some of the language in the final action item.

In the footnote, OSHA takes a shot across the bows of employee incentive programs and mandatory drug tests for workers who report injuries. OSHA says in that note:

Incentive programs for workers or managers that tie performance evaluations, compensation, or rewards to low injury and illness rates can discourage injury and illness reporting. Point systems that penalize workers for reporting injuries, illnesses, or other safety or health concerns have the same effect, as can mandatory drug testing after reporting injuries. Effective safety and health programs recognize positive safety and health activities, such as reporting hazardous conditions or suggesting safer work procedures.

In its action item on removing barriers to worker participation, OSHA recommends that employers “Ensure that other policies and programs do not discourage worker participation,” and references the note above. Some of the comments on the draft guidelines noted that this language could be construed to discourage incentive programs even if they prevented serious injuries, illnesses, or deaths, and other comments stated that OSHA’s assertion that incentive programs suppress injury and illness reporting is unsupported by any evidence.

Employers also objected to the statement, in the action item on removing barriers to worker participation, that “Participation will be suppressed if there is fear of retaliation—for example, if investigations focus on blaming individuals rather than the underlying conditions that led to the incident.” This was viewed by employers as an implicit criticism of behavior-based safety observations and similar employer practices.

Although the guidelines are voluntary and unenforceable, they do represent OSHA’s current philosophy with regard to incentive programs, postincident drug testing, and behavior-based safety. Compliance with such voluntary guidelines is generally treated by OSHA as evidence of good faith on the employer’s part, but what about situations like this, where OSHA’s philosophy may differ significantly from the employer’s point of view? Caveat employer: if OSHA inspects a workplace and identifies programs that it believes discourage reporting of workplace injuries and illnesses, or otherwise fail to fully identify workplace hazards, employers may be at risk of closer scrutiny and general-duty clause citations for failing to provide a workplace “free from recognized hazards.”

Do you need more analysis of OSHA’s voluntary initiatives and how they can affect your compliance efforts?® will help you keep up with the latest developments.

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