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Encouraging employees to report unsafe practices and conditions is the best way to prevent a serious injury or fatality. Contractors that put the brakes on such reporting may gain a day or two on the schedule in the near term, but operate at a high risk of injury (or worse) in the long term, with potential schedule disruptions and an elevated experience modification rate. Last March, Richard Fairfax, deputy assistant secretary of the Occupational Safety and Health Administration (OSHA), sent a memorandum to regional OSHA administrators and whistleblower program managers on employer safety policies and practices that act as incentives and disincentives.
“If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk,” Fairfax said in the memo. “Employers do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention, or the workers' compensation benefits to which they are entitled. Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health…

“OSHA has also observed that the potential for unlawful discrimination…may increase when management or supervisory bonuses are linked to lower reported injury rates,” the memo states. “While OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.”

Following are some of the most common potentially discriminatory policies listed in the memo:

  1. OSHA has received reports of employers that have a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. Reporting an injury is always a protected activity. OSHA views discipline imposed under such a policy as a direct violation of section 11(c). In other words, an 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. In addition, such a policy is inconsistent with the employer's obligation to establish a way for employees to report injuries under 29 CFR 1904.35(b), and where it is encountered, a referral for a recordkeeping investigation should be made.
  2. Cases in which an employee who reports an injury or illness is disciplined for violating an employer rule about the time or manner for reporting injuries and illnesses deserve careful scrutiny. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating section 11(c). OSHA recognizes 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. For example, the rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all. Enforcement of such rules also may not be used as a pretext for discrimination. In investigating such cases, the following factors may be considered: whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate; whether the employee had a reasonable basis for acting as he or she did; whether the employer can show a substantial interest in the rule and its enforcement; and whether the discipline imposed appears disproportionate to the asserted interest. Again, if the employer's reporting requirements are unreasonable, unduly burdensome or enforced with unjustifiably harsh sanctions, they may result in inaccurate injury records, and a referral for a recordkeeping investigation should be made.
  3. 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. However, if an employer attempts to use a work rule as a pretext for discrimination against a worker who reports an injury, a careful investigation is necessary. Several circumstances are relevant. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? The nature of the rule cited by the employer also should be considered. Vague rules, such as a requirement that employees "maintain situational awareness" or "work carefully" may be manipulated and used as a pretext for unlawful discrimination. Therefore, where such general rules are involved, the investigation must include a careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than non-injured employees may suggest  the rule is a pretext for discrimination against an injured employee in violation of section 11(c).
  4. Finally, some employers establish programs that unintentionally or intentionally dissuade employees from reporting 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 during a period of time. Such programs usually are well-intentioned; however, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities (e.g., identifying hazards or participating in investigations of injuries, incidents or near misses). OSHA materials refer to a number of positive incentives, including providing t-shirts to workers serving on safety and health committees, offering modest rewards for suggesting ways to strengthen safety and health, or throwing a recognition party at the successful completion of company-wide safety and health training.

Incentive programs that discourage employees from reporting their injuries are problematic because, under section 11(c), an employer may not "in any manner discriminate" against an employee because the employee exercises a protected right, such as the right to report an injury.

In addition, if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer's failure to record injuries required under Part 1904. In this case, the employer is violating that rule, and a referral for a recordkeeping investigation should be made.

“Reporting 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),” the memo states. “Other whistleblower statutes enforced by OSHA also may protect employees who report workplace injuries,” including, for contractors and subcontractors of railroad carriers, the Federal Railroad Safety Act.

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