In a memorandum to Regional Administrators and Whistleblower Program Managers, OSHA Deputy Assistant Secretary Richard Fairfax has provided guidance on employer practices that OSHA believes can discourage employee reports of injuries and violate section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act), or other whistleblower statutes.
The memorandum states definitively, “[R]eporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination under section 11(c).” It also lists the following “most common” potentially discriminatory policies:
- Taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. “[A]n employer’s policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury.”
- Taking disciplinary action against employees who report an injury or illness and the stated reason is that the employees have violated an employer rule about the time or manner for reporting injuries and illnesses. “OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee’s right and ability to report.”
- Taking disciplinary action against employees who are injured on the job because they violated a safety rule, when the rule violation is simply a pretext for discrimination. •
- Establishing incentive programs that may discourage reporting of 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.”
Employers should make any needed adjustments to their policies.