The Occupational Safety and Health Administration (OSHA) issued a directive on March 12, 2012, explaining its position on safety incentive and disincentive policies. Section 11(c) of the OSHA Act prohibits an employer from discriminating against an employee because the employee reports an injury or illness.[1] In the March 12 guidance, OSHA identifies employer practices that it believes may discriminate against employees or discourage employee injury reports and recommends alternatives.

OSHA'S PERSPECTIVE

OSHA considers reporting a work-related injury to be a core employee right. Employees must feel free to report injuries and illnesses without fear of discrimination or retaliation. OSHA fears that some employer policies and programs, though perhaps well-intentioned, may actually discriminate against injured employees and deter reporting. Employers should evaluate their current policies and procedures to ensure they have well-documented and non-discriminatory injury reporting and safety incentive policies and procedures.

SAFETY INCENTIVE PROGRAMS

Since reporting an injury is a protected employee right, OSHA might view programs that in effect discourage employees from reporting injuries as discriminating. For example, many employers reward workers for going extended periods of time without sustaining any injuries. Workers may get to enter a raffle, enjoy a pizza lunch or receive a bonus if they or their team are injury-free.

Though employers may have these types of programs to promote and reward safety, OSHA believes that employees may under-report injuries and illnesses so they or their team can get the award. Instead, OSHA submits that employers should implement policies that more directly encourage safety by promoting worker involvement in safety-related activities, such as identifying hazards or participating in injury investigations.

Employers concerned about their safety incentive programs, and whether they may be open to discrimination, should consider using one or more of the following options OSHA recommends:

  • Giving t-shirts to workers who serve on safety and health committees;
  • Providing modest rewards for suggestions to improve safety and health; or
  • Throwing a party at the successful completion of a company-wide safety and health training.

DISCIPLINING INJURED EMPLOYEES

In its directive, OSHA stated that it has gotten reports of employers disciplining employees who get injured on the job, no matter how the injury occurred. OSHA views this kind of practice as a direct violation of section 11(c) because reporting an injury is a protected employee right. Employers must establish a way for employees to report injuries, but a policy of disciplining all injured employees, regardless of fault, is inconsistent with that obligation. If there is a safety violation that warrants discipline, the employer should carefully document the violation and cite the rule violated.

DISCIPLINING INJURED EMPLOYEES FOR VIOLATING A REPORTING PROCEDURE

OSHA also notes concern about employers disciplining employees who report an injury or illness "late" or in a manner inconsistent with the employer's reporting policy. For example, OSHA states that sometimes workers do not immediately realize they have been injured or that their injury is serious enough to report. Since reporting the injury "late" results in discipline, there is potential for discrimination.

Employers may establish procedures for workers to report injuries. But to comply with the statute and to avoid OSHA's scrutiny, the procedures must be reasonable, not unduly burdensome and fairly enforced. When investigating employee complaints that may involve a reporting procedure violation, OSHA will consider the nature and reason for the employee's deviation from the procedure, the employer's interest in having and enforcing the rule, and the severity of the discipline in relation to the violation. Employers should keep clear and thorough records of the procedures and any violations, and discipline employees uniformly for any infractions.

DISCIPLINING INJURED EMPLOYEES FOR SAFETY VIOLATIONS

Another potentially discriminatory situation is when an employer disciplines an injured employee on the grounds that the employee violated a safety rule, stating that the violation is what caused the injury. Legitimate workplace safety rules can help prevent injuries from occurring, but OSHA fears that some employers may try to use the breadth of a work safety rule as a pretext for discriminating against a worker who reports an injury.

OSHA encourages employers to maintain and enforce safety rules but stresses that they should avoid vague rules such as "maintain situational awareness" or "work carefully" because these can be easily manipulated and used as a pretext for discrimination. Employers should also consistently monitor for compliance with safety rules, evenly enforce and discipline violations against injured and non-injured employees and thoroughly document incidents.

OSHA'S NEW WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE

On May 17, 2012, OSHA announced its intent to establish a Whistleblower Protection Advisory Committee (WPAC). According to the notice in the Federal Register, "[t]he WPAC advises, consults with, and makes recommendations to the Secretary of Labor (Secretary) and the Assistant Secretary of Labor for Occupational Safety and Health (Assistant Secretary) on ways to improve the fairness, efficiency, effectiveness and transparency of OSHA's whistleblower protection activities."[2]

More specifically, the WPAC will attempt to help improve OSHA's customer service, investigative and enforcement processes, investigator training and cooperation with associated federal agencies. Once established, the WPAC will be required to have public meetings. Employers and their counsel should consider participating in the public meetings to ensure that their interests are heard and considered.