Don’t Let Your Driver Safety Incentive Program Spell Trouble with OSHA

moneyThere’s been a surge of interest in fleet safety/driver safety incentive programs to capture the attention of drivers and influence a stronger focus on driving safely to avoid crashes, and resulting damages. 

We’ve seen many clients incorporate various reward programs into their efforts with impressive short-term results and questionable long-term sustainability.  Our recent article “Motivating Drivers to Make Safer Choices” (LINK) offers basic, foundational advice to bolster results before approaching incentives.

However you stack up your fleet safety incentive efforts, be certain that you are NOT digging a deeper hole on your Worker’s Compensation / Workplace Injury compliance efforts.

OSHA had put out a memorandum (LINK) on this issue in March of last year, and its relative importance has been recently re-surfaced among safety networks.

In part the memo states:

There are several types of workplace policies and practices that could discourage reporting and could constitute unlawful discrimination and a violation of section 11(c) and other whistleblower protection statutes. Some of these policies and practices may also violate OSHA’s recordkeeping regulations, particularly the requirement to ensure that employees have a way to report work-related injuries and illnesses. 29 C.F.R. 1904.35(b)(1). I list the most common potentially discriminatory policies below. OSHA has also observed that the potential for unlawful discrimination under all of these policies may increase when management or supervisory bonuses are linked to lower reported injury rates. While OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.[emphasis added]

It continues by citing several scenarios that would be considered problematic, and then delivers this message of mixed cautions and positive suggestions:

Finally, some employers establish programs that unintentionally or intentionally provide employees an incentive to not report injuries. For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or “near misses”. OSHA’s VPP Guidance materials refer to a number of positive incentives, including providing tee shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training. See Revised Policy Memo #5 – Further Improvements to VPP (June 29, 2011).

Incentive programs that discourage employees from reporting their injuries are problematic because, under section 11(c), an employer may not “in any manner discriminate” against an employee because the employee exercises a protected right, such as the right to report an injury. FRSA similarly prohibits a railroad carrier, contractor or subcontractor from discriminating against an employee who notifies, or attempts to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury. If an employee of a firm with a safety incentive program reports an injury, the employee, or the employee’s entire work group, will be disqualified from receiving the incentive, which could be considered unlawful discrimination.[emphais added] One important factor to consider is whether the incentive involved is of sufficient magnitude that failure to receive it “might have dissuaded reasonable workers from” reporting injuries. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).

In addition, if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer’s failure to record injuries that it is required to record under Part 1904. In this case, the employer is violating that rule, and a referral for a recordkeeping investigation should be made. If the employer is a railroad carrier, contractor or subcontractor, a violation of FRA injury-reporting regulations may have occurred and a referral to the FRA may be appropriate. This may be more likely in cases where an entire workgroup is disqualified because of a reported injury to one member, because the injured worker in such a case may feel reluctant to disadvantage the other workgroup members.

So if you employ drivers and operate an incentive plan that rewards reductions in injuries (even if related to Motor Vehicle Crashes), you should consider whether your program could present issues with OSHA.

Another safety professional recently posted this suggestion (LINK) to help with incentive programs (and this is his own opinion, not necessarily reflective of SafetyFirst’s opinions):

An incentive program based on reporting of observations and near misses produces more and better results than zero accident/recordable programs, because it acknowledges the reality  that injuries or incidents will occur. When used correctly, leading indicators identify breakdowns or weaknesses before they become a problem.

Here are just two of many ideas for leading indicator incentive programs:

  • Establish goals for the number of observations reported: Be creative! This can be applied organization-wide, by department and at the employee level.
  • Near-Miss Committee: This is a function outside the traditional safety committee. Typically a near-miss investigation only involves management. This approach encompasses other personnel, including employees who can assist with root-cause analysis and prevention.

These types of programs still give the employee’s an incentive to be attentive to safety. 

To the extent that you may want to leverage observation reporting and near miss reporting, you may want to investigate our How’s My Driving Hotline program and MVR profiling programs.  Each is linked to robust online reporting, including 4-digit SIC benchmarking and easy telematics integration.  Neither program discourages reporting of actual injuries, but could be a surrogate / stand-in for incentive metrics.

Changing your reporting metrics from counting injuries to counting telematics alerts, camera-in-cabin events, how’s my driving reports and other factors may be helpful in reducing risk while avoiding the temptation for employees to suppress proper reports of actual workplace injuries.

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