Safety incentive programs have great intentions but can be a legal risk if employees feel silenced.
Safety incentive programs can be dodgy business, especially if employees feel compelled to keep quiet about incidents in order to preserve the clean record of their unit—or their manager.
The Occupational Safety and Health Administration (OSHA) has issued clarifications on its Workplace Safety Incentive Programs and Post-Incident Drug Testing interpretations, first issued in May 2018.
The agency reiterates its position that employers have the right to develop safety incentive programs without fear of violating the OSHA guidelines, as long as employers do not penalize employees for reporting an injury or illness. Some of the incentive scenarios include:
- Near-miss and hazard reporting programs
- Prize or rate-based incentives for an injury-free period
- Manager evaluations based on safety record of unit
However, OSHA’s definition of “adequate precautions to ensure that employees feel free to report an injury or illness” creates a gray area open to interpretation—and law suits.
HR teams should perform the following due diligence:
- Document the parameters of all safety incentive programs carefully.
- Written documents describing the safety programs and the ability to report should be provided to all employees, in languages that reflect your staff demographics.
- Provide multiple ways an employee could report an incident unimpeded.
- Consider conducting occasional anonymous employee surveys that will document the staff’s comfort level with reporting under the programs.
When it comes to drug testing, the scenarios are a bit more clear, since “most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv),” the OSHA document notes.
OSHA’s examples of permissible drug testing include:
- Random drug testing
- Drug testing unrelated to the reporting of a work-related injury or illness
- Drug testing under a state workers’ compensation law
- Drug testing under other federal law, such as a U.S. Department of Transportation rule
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. NOTE: If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
