In this article:
OSHA does not ban safety incentive programs. As of October 2026, the controlling rule is 29 CFR 1904.35(b)(1)(iv), which bars retaliating against employees for reporting a work-related injury or illness. OSHA's October 11, 2018 enforcement memo says incentive programs are allowed, including programs that reward injury-free periods, as long as they are not run in a way that discourages reporting.
That one condition is where fleets get into trouble. A bonus that a driver loses by reporting a sprained wrist from a trailer door can push people to stay quiet. The rest of this guide covers what the rule says, how OSHA reads it, and a checklist to run before you launch or change a program.
The rules and guidance at a glance (as of October 2026)
| Source | Status as of October 2026 | What it says, in short |
|---|---|---|
| 29 CFR 1904.35(b)(1)(i) | Final rule, in force | Your injury reporting procedure must be reasonable and must not deter or discourage reporting |
| 29 CFR 1904.35(b)(1)(iv) | Final rule, in force | You must not discharge or discriminate against an employee for reporting a work-related injury or illness |
| 29 CFR 1904.36 | Final rule, in force | Section 11(c) of the OSH Act also bars retaliation for reporting a fatality, injury or illness |
| OSHA memo of October 11, 2018 | Enforcement guidance (an interpretation, not a regulation) | Incentive programs and post-incident drug testing are allowed unless used to penalize reporting |
| 29 CFR 1978.102 (STAA) | Final rule, in force | Protects truck drivers who raise safety complaints, refuse unsafe operation, or report accurately |
The two 1904.35 paragraphs and 1904.36 came from OSHA's May 12, 2016 final rule, 81 FR 29624, which set August 10, 2016 as the effective date for those two sections. The newest Federal Register document on Part 1904 we found, dated July 1, 2025, withdrew a proposal about a musculoskeletal disorder column on the OSHA 300 Log. It did not touch the anti-retaliation text.
What 29 CFR 1904.35 says
29 CFR 1904.35 is OSHA's employee-involvement rule for injury recordkeeping. Three parts matter for an incentive program.
- A reasonable reporting procedure. Under 1904.35(b)(1)(i), employers must set up a way for employees to report injuries "promptly and accurately". The rule adds: "A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness."
- Telling employees their rights. Paragraph (b)(1)(iii) requires you to inform each employee that they have the right to report work-related injuries and illnesses, and that employers are prohibited from retaliating for it.
- No retaliation. Paragraph (b)(1)(iv) reads: "You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness."
The phrase "in any manner" is why incentive programs come up. Taking away a bonus is a manner of treating someone differently. The question OSHA asks is why the bonus was taken away.
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What OSHA's 2018 memo says about incentive programs
The October 11, 2018 memo, 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)", was signed by Kim Stille, Acting Director of OSHA's Directorate of Enforcement Programs. Its core points, quoted from the memo itself:
- The rule "does not prohibit workplace safety incentive programs or post-incident drug testing."
- An action breaks the rule only "if the employer took the action to penalize an employee for reporting a work-related injury or illness."
- Programs that reward workers "for reporting near-misses or hazards" are treated as the safest kind: "Positive action taken under this type of program is always permissible under § 1904.35(b)(1)(iv)."
- Rate-based programs, such as a prize or bonus "at the end of an injury-free month" or rating managers on "their work unit's lack of injuries", are "also permissible" as long as "they are not implemented in a manner that discourages reporting."
- If an employer withholds a rate-based prize because an injury was reported, OSHA "would not cite the employer" under this rule, provided the employer has taken adequate precautions so employees feel free to report.
- A statement that employees are encouraged to report and will not face retaliation "may not, by itself" be enough.
The memo also tells OSHA's regional administrators to consult the Directorate of Enforcement Programs before citing an employer under this provision for an incentive program or post-incident drug test. It replaces four 2016 OSHA interpretive documents only to the extent they conflict with it.
The precautions OSHA names
The memo says an employer can avoid an unintended deterrent effect "by taking positive steps", and gives three examples:
- "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"
- "a mechanism for accurately evaluating employees' willingness to report injuries and illnesses"
Drug testing after a crash
Fleets often pair incentives with post-accident testing. The memo lists "Drug testing under other federal law, such as a U.S. Department of Transportation rule" among permissible testing, alongside testing under a state workers' compensation law.
Is a "no injuries" bonus legal?
Yes, under the 2018 memo, with conditions. A prize for an injury-free month or quarter is a rate-based program, and OSHA says those are permissible when they are not run in a way that discourages reporting. The risk sits in how drivers experience it: if the only visible result of reporting is that the whole terminal loses its prize, people learn not to report.
That concern is older than the memo. A 2012 Government Accountability Office report, GAO-12-329, estimated from 2010 survey data that 22% of U.S. manufacturers had rate-based programs, and noted that experts and industry officials suggested such programs may discourage reporting. GAO also found that little research existed on the question: of six studies it identified, the two that looked at reporting found no relationship.
How the memo treats common program designs
This decision table maps typical fleet programs to the 2018 memo. It is a reading of the memo's text, not a ruling.
| If your program... | How the 2018 memo treats it | What to put next to it |
|---|---|---|
| Rewards reporting hazards or near misses | "Always permissible" | Nothing extra needed for this part |
| Pays a bonus for an injury-free month or quarter | Permissible if not implemented to discourage reporting | Reporting training, rewards for flagging hazards, a check on willingness to report |
| Withholds that bonus after a reported injury | OSHA "would not cite" if adequate precautions are in place | The same precautions, in writing, before the injury happens |
| Docks pay, points or eligibility because someone reported | A violation if done to penalize reporting | Remove it |
| Rates supervisors on their unit's injury count | A rate-based program, permissible with the same safeguards | Watch for pressure on drivers not to report |
| Relies only on a "we don't retaliate" poster | "May not, by itself" be adequate | Add training and a real feedback channel |
Where trucking fleets fit
Truck transportation is not on OSHA's list of partially exempt industries in Appendix A to Subpart B of Part 1904. The list does include freight transportation arrangement (NAICS 4885), which covers brokers, not carriers. A company with 10 or fewer employees at all times in the last calendar year does not keep the OSHA injury records under 29 CFR 1904.1, but it must still report a fatality, in-patient hospitalization, amputation or loss of an eye. Retaliation for reporting is also barred by Section 11(c) of the OSH Act, as 1904.36 notes.
Drivers have a second layer of protection. The Surface Transportation Assistance Act (STAA) rule at 29 CFR 1978.102 bars retaliation against a driver who files a safety complaint, refuses to drive in violation of a safety rule, accurately reports hours of service, cooperates with a federal safety investigation, or gives an agency facts about an accident. Under 1978.101, "employee" includes "an independent contractor when personally operating a commercial motor vehicle", so owner-operators can be covered too.
The filing windows differ. A driver has 180 days to file an STAA complaint under 1978.103(d), while an 11(c) complaint is presumed untimely after 30 days under 1977.15(d).
One more trucking-specific point. FMCSA's Safety Management Cycle guidance on unsafe driving recommends incentives and recognition for safe driving, and also says: "Do not use on-time delivery incentives, which could encourage speeding" (FMCSA SMC document). FMCSA's guidance is a recommendation, not a requirement, and does not endorse any vendor. An incentive that quietly rewards beating the clock can also work against honest hours of service logs.
Checklist before you launch or change a program
Use these questions with your safety, HR and legal team. Each one ties back to the rule text or the 2018 memo.
- Is the injury reporting procedure written down, reasonable, and given to every employee, including new hires? (1904.35(b)(1)(i)–(ii))
- Have you told every employee they have the right to report and that retaliation is prohibited? (1904.35(b)(1)(iii))
- Does the program reward something drivers control, such as reporting hazards, near misses or defects, and not only an outcome like "zero injuries"?
- If a bonus can be lost after an incident, is it lost because of the conduct that caused the incident, documented the same way for everyone, or because of the report?
- Do supervisors and terminal managers have injury-count targets that could lead them to lean on drivers?
- Do you train all employees on reporting rights, and can you show it?
- How will you know whether people are reporting? For example, compare hazard and near-miss reports over time, or run an anonymous survey.
- Who decides whether a crash or injury counts against eligibility, and can the driver ask for a review? Our guide to preventable vs non-preventable crashes covers how fleets draw that line.
- Does any part of the program reward on-time delivery in a way that could push speeding or log errors?
For the money side of the decision, see cash safety bonus vs rewards. For recognition that does not hinge on an injury count, see our guide to a driver of the month program, and for the bigger safety picture, how to reduce fleet accidents.
Off Duty Not Driving Rewards is a rewards program for trucking fleets. Contact our team to learn more.
This article is general information, not legal advice. Confirm requirements against the current regulation text and with your compliance counsel.
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