The Occupational Safety and Health Administration (OSHA) recently posted a tweet with the following question: “Is your pizza party incentive program unreasonable?” Setting aside the frontal attack on arguably one of the most revered of all cultural experiences in America—the pizza party—questions regarding safety incentive programs are recurring among employers. And OSHA hasn’t entirely made its position clear.
OSHA has gone back and forth for more than a decade concerning the “legality” of safety incentive programs, first formally commenting in a standard interpretation issued on March 12, 2012. That standard interpretation—titled, “Employer Safety Incentive and Disincentive Policies and Practices”—listed a host of policies and practices that OSHA considered potentially discriminatory against employees who reported 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.”
The next statement on the issue, official or otherwise, was a second interpretation. That interpretation, dated October 11, 2018, and titled, “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv),” recognized that incentive programs could be “an important tool to promote workplace safety and health.” On the issue of whether employers could offer employees the hallowed pizza party, that interpretation preserved the tradition by saying:
Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) 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 under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.
The interpretation continued, encouraging employers to “avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates,” such as:
- “an incentive program that rewards employees for identifying unsafe conditions in the workplace”;
- “a training program for all employees to reinforce reporting rights and responsibilities and [that] emphasizes the employer’s non-retaliation policy”;
- “a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses”
Then on a cold, dark, Friday the 13th in January 2023, OSHA tweeted guidance and a graphic regarding pizza party incentive programs. But we all know Twitter isn’t the real world and that it is not an official form of government communications, right? Whether this is OSHA’s official position or not, it seems likely that at least some whistleblower investigators will follow the advice of the tweet.
The offered guidance reiterates much of the same advice as the 2018 interpretation, but the corresponding graphic deviates from that interpretation and states that such programs are unreasonable if they deny benefits or bonuses to employees based on reported injuries or are tied to recordable injury rates; “[e]xclude workers who report injuries from prizes or awards”; or “[p]rovide rewards or parties for workers or crews who remain injury free.”
The suggestion that withholding participation in a pizza party for an employee who reports an injury could be a violation of the OSH Act is confusing at best, directly contradicts the formal guidance from OSHA, and puts an employer between a rock and a hard place, as it relates to knowing whether OSHA will actually act if employers use such incentive programs. We expect more guidance of a more formal nature may follow, but as for now, OSHA’s Friday the 13th tweet is more horror than clarity for employers wanting to use such programs in the workplace.
