Page 72 - Occupational Health & Safety, June 2019

Employee Gifts & Incentives
cedures.” Grouped with deliberate fraud- ulent reporting, permitting drug abuse, and evidence tampering was a definition that the practice of offering a meal, gift, or other reward in recognition of the absence of reported accidents (“rate- based” or “outcome based” criteria) was an “instrument of retaliation.” OSHA believed the reward’s simple presence carries the possibility that it is an implic- it threat of that reward being withheld if a participant follows the law and files a required report.
The Incentive Federation Inc. (IFI), the incentive industry’s legislative and regulatory nonprofit representative, re- sponded vigorously regarding the fallacy of this position. Here’s a parallel: Individ- uals often pay for purchases using cash. It would be an extreme over-response to suggest that no one should ever use cash because of the acknowledged fact that there are counterfeiters out there; instead, we design controls and safeguards to en- sure that with reasonable precautions, cash is a safe and effective business tool.
My incentive industry colleagues would agree that no ethical incentive provider would create a program to dis- courage reporting. Tracking safety issues is an integral part of making a workplace safer. In fact, most programs I have im- plemented with businesses specifically include performance-based bonus points for promptly and properly reporting an injury or accident. Many impose severe penaltiesfornotfilingarequiredreport. Even though we are in the “carrot,” not the “stick,” business, we accept this pen- alty because it is part of the employer’s standard operating procedures to prop- erly report any accident or injury, so the penalty will never apply unless someone is violating the company policy.
In October 2018, OSHA published a commentary stating that result-based (OSHA calls this “rate based”) incentives are acceptable in a properly designed pro- gram. To summarize, the essential lan- guage (edited for brevity, but preserving context) of the OSHA commentary is:
“Rate-based incentive programs are also permissible under §1904.35(b)(1)(iv)
By my reading, OSHA’s fall 2018 commentary doesn’t simply endorse the Incentive Federation position from three years ago, it virtually quotes it.
as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer ... as long as the employer has implemented ad- equate precautions to ensure that employ- ees feel free to report an injury or illness.”
My reading of this OSHA commen- tary is that, for anyone involved in safety incentive programs, this is a game chang- er and a return to reason. I agree with other recognized authorities that view this as a complete reversal of the prior OSHA position that rate-based rewards are never allowed because a rate-based award is prima facie evidence of discour- aging reporting. It appears to me that this statement is a retrenching by OSHA, rec- ognizing the weakness and indefensibility of their current rule.
This commentary validates and strengthens the published analysis of George Delta, IFI executive director and general counsel, and the central point of a formal written challenge submitted to OSHA by the IFI at the time the origi- nal “Anti-Retaliatory Enforcement Pro- cedures” position was published. Delta explained the objectionable wording against rate- based awards would prob- ably not stand up to a rigorous court challenge, because (a) it exceeds the mandate and authority of OSHA un- der the enabling legislation that created the Labor Department division in De- cember of 1970 and (b) the underlying premise of their previous decision is not supported by either simple or in-depth analysis of provable outcome-based data from programs that have utilized such awards and achieved high-level recogni- tion for program efficacy and integrity. By my reading, OSHA’s fall 2018 com- mentary doesn’t simply endorse the In- centive Federation position from three
years ago, it virtually quotes it. Anecdotally, OSHA has reportedly
urged field officers to not file a complaint citing §1904.35(b)(1)(iv) unless there is clear evidence of intent, which has been widely interpreted by industry analysts as OSHA’s tacit admission that this position was an excellent bullying tactic to intimi- date those under its authority, as long as it wasn’t revealed to be unenforceable. I be- lieve that recent actions on behalf of the Incentive Federation, including taking steps toward achieving an ANSI standard for incentive programs that OSHA would have to recognize under federal law, con- tributed to this backtracking on their position. More information about that initiative is available through This means that a well-designed program, supported by pro-reporting policies, which includes proven, effective, results-based rewards can again be integrated into your existing or new programs.
If you need help designing an effec- tive safety incentive program, contact an incentive professional at www.incentive- marketing.org.
Will this policy change again? History tells us another aggressive intimidation assertion by OSHA is likely in another five years. That same history tells us that factsandreal-worldanalysisseemtoun- dercut this position sooner each time it resurfaces.
Sean Roark, CPIM, is a recognized au- thority on the topic of Safety Incentive Pro- grams, and a long-time contributor to Oc- cupational Health & Safety magazine, as well as a featured speaker at the National Safety Council and the American Society of Safety Professionals. Sean, who along with his wife Leslie owns Houston-based PromoPros/IncentPros, is a Past President of the Incentive Marketing Association (IMA), www.incentivemarketing.org, and the current Chair of the IMA Professional Education and Certification Committee.
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