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(Just Don’t Report Your Sprained Back)

Safety incentive programs are popular, but their downside is obvious.

Can employers encourage sound safety practice without discouraging reports of real workplace injuries?

A new policy memorandum from OSHA should spur creative alternatives to old-style incentive programs. Issued March 19, 2012, by Deputy Assistant Secretary Richard Fairfax, the memo affirms, clarifies and re-enforces Section 11(c) of the OSH Act which prohibits an employer from discriminating against an employee because the employee reports an injury or illness.

According to Fairfax, “Reporting a work-related injury or illness is a core employee right,” and an employer’s entire workforce is placed in jeopardy “if employees do not feel free” to exercise this right. His memo stresses that “several types of workplace policies and practices…discourage reporting and could constitute unlawful discrimination” in violation of Section 11(c). He cites four examples:

  1. Imposing disciplinary action against employees who are injured on the job, regardless of the circumstances.
  2. Imposing disciplinary action against injured employees for violating an employer rule about the time or manner of reporting injuries or illnesses.
  3. Imposing disciplinary action against injured employees for violating a safety rule.
  4. Intentionally or unintentionally providing incentives to employees to not report injuries.

These practices will come under increased OSHA scrutiny in the wake of this memorandum.


Employers know they can lower their workers’ compensation insurance premiums by keeping injury reporting to a minimum. Further, limiting compensation claims transfers the cost of care to the injured worker or to his or her health care insurance provider.

Low reported injury rates can also reduce an employer’s exposure with OSHA and avoid a targeted inspection.

Inaccurate and underreported injuries also frustrate sound public policy by making the problem of workplace safety seem less significant while disguising or distorting concentrations of injuries that might otherwise invite constructive attention and regulation.

While OSHA’s memorandum does not create a new regulation, it does strengthen enforcement guidance to OSHA inspectors. The memo notes that an incentive “great enough that its loss dissuades reasonable workers from reporting injuries…would result in the employer’s failure to record injuries” as required by Part 1904. An example of such a program would be one that disqualifies an entire workgroup from a reward because of the reported injury of one member. Perceived or real group pressure could cause an injured worker to avoid reporting. When such incentive programs are encountered, the memo directs inspectors to make a referral for a recordkeeping investigation.

Positive Alternatives

It is too simplistic and self-serving for companies to have incentive programs that focus on reported injuries. To prevent real injuries, incentive programs must encourage actual improvements.

The OSHA memo cites “positive incentives” identified in VPP Guidance materials: free t-shirts for safety & health committee members, modest rewards for suggestions to improve worksite safety or throwing a party at the end of company-wide OSH training.

The Fund’s OSH Division suggests contractors consider rewards for finding hazards on the jobsite or rewards for reporting near misses. The Division also can provide consultation and guidance to employers who want help designing such programs.

[Steve Clark]

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