Just months following the release of the Occupational Safety and Health Administration's revised Whistleblower Investigations Manual, bolstering protections for whistleblowers, OSHA has issued another warning to companies: be careful how you implement employee discipline and safety-incentive policies and procedures.
In a recent policy memorandum to field compliance officers and whistleblower investigative staff, OSHA's Deputy Assistant Secretary Richard Fairfax laid out several common potentially discriminatory workplace policies and procedures that could discourage employees from reporting injuries in violation of the Occupational Safety and Health Act. Section 11(c) prohibits companies from retaliating against employees who report work-related injuries or illnesses.
The Fairfax Memo, along with OSHA's latest series of initiatives, signals a significant departure from past practice. Compliance officers in virtually all industries should heed the warning that OSHA is aggressively reviewing companies' disciplinary actions and safety incentive programs.
“It's basically a yellow light for employers to be careful about how they handle employees who have filed workers' compensation claims,” says Jon Coppelman, senior vice president at consulting firm Lynch Ryan & Associates.
Others warn employers to be prepared for a rise—both in number and in intensity—of OSHA whistleblower investigations and more requests for documentation.
The Fairfax Memo specifically lists the four most common policies and procedures that potentially result in discriminatory practices:
1. Disciplining employees injured on the job, regardless of the circumstances surrounding the injury.
“Reporting an injury is always a protected activity,” stressed Fairfax. A company's policy to discipline all injured employees, regardless of fault, does not justify an adverse action against an employee who reports an injury. Instead, employers should adopt objective measures to evaluate employees and respond to reported safety violations.
2. Disciplining employees for violating employer rules concerning the time frame and manner in which injuries and illnesses must be reported.
“OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries,” said Fairfax. “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.”
For example, companies can't punish employees who don't immediately realize that their injuries are serious enough to report, or even that they are injured at all. Upon investigating such cases, OSHA will consider the following factors:
Was the employee's deviation from the procedure minor or extensive, inadvertent or deliberate?
Did the employee have a reasonable basis for violating the employer's rule?
Can the employer show a substantial interest in the rule and its enforcement?
Did the discipline appear disproportionate to the asserted interest?
Still, the memo shouldn't discourage employers from having their own procedures for reporting injuries and illnesses. Coppelman recommends that employers have a standard policy that encourages employees to immediately report an injury to their supervisor. “I would define ‘immediately' to mean as soon as the employee becomes aware of the injury,” he says.
“[The Fairfax Memo] is basically a yellow light for employers to be careful about how they handle employees who have filed workers' compensation claims.”
—Jon Coppelman,
SVP of Management Consulting,
Lynch Ryan & Associates
3. Disciplining employees who report an injury on the ground that the injury resulted from a safety rule violation.
“OSHA encourages employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place,” said Fairfax. Enforcing a rule more stringently against injured employees than non-injured employees, however, may suggest that the rule is a pretext for discrimination against an injured employee and will not be tolerated, he warned.
“You would need to demonstrate that you've consistently applied your policies, regardless of injury,” says Kevin Cannon, director of safety and health services for the Associated General Contractors of America. “Don't just write someone up, or suspend or terminate someone, because they were injured by way of violating your policy; it should be enforced regardless of injury.”
“The key here is consistency,” agrees Coppelman. Consider these questions: Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose similar discipline against employees who violate the work rule in the absence of an injury?
Vague rules—such as requiring employees to “maintain situational awareness” or “work carefully”—will be carefully examined by OSHA in determining how the employer applied the rule in situations that do not involve an employee injury.
“Once someone reports an injury, they are essentially a protected class, and you have to be very careful how you manage that situation and the employment decision you make around that individual,” concludes Coppelman. “Whatever you choose to do, document it very carefully.”
4. Establishing programs that incentivize employees not to report injuries—intentional or not.
With some incentive programs, employers might enter all employees who have not been injured in the last year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one has been injured over some period of time. Even if such programs are well-intended, they can create the implicit feeling that the next person who suffers an injury ruins it for the company, says Coppelman.
OSHA DISCRIMINATION CLAUSE
Part C of the Occupation Health & Safety Act below outlines rules against employee discrimination:
Part C:
(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.
(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
(3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph 2 of this subsection.
Source: Department of Labor.
“It's a tricky area, something that employers need to look at carefully,” he says. “Anybody who has a performance incentive program is obligated to review the program from that point of view.”
The number of injuries—or lack thereof—should not be the only factor in an incentive program, agrees Cannon. “If you're program only involves the counting of injuries and illnesses, that could be a cause for concern.”
While keeping track of the number of workplace injuries can help identify problem areas, companies also need to take actions to prevent future incidents, advises Cannon. Such preventative measures include self-audits, job-site inspections, and training, he says.
Other ways to encourage safe work practices include incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents, or “near misses,” said Fairfax.
He also stressed 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,” he said.
Cannon recommends that compliance officers take a close look at the memo in comparison to the company's current policies regarding safety rule violations, the reporting of injuries, and incentive programs “to see if whether what you're doing could possibly raise a red flag with the investigators.”
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