For decades good employers have been trying to find ways to reward their employees for safe practices. And some old methods are falling out of favor as the Occupational Safety and Health Administration (OSHA) tries to prevent actions that cause under reporting of real safety incidents.
Unfortunately, well-meaning employers unintentionally “retaliated” against an employee that had reported a workplace injury or illness. OSHA has over the last few years started to crack down on safety incentive programs that are tied to a specific safety record or performance. The concern is that by rewarding employees for a clean safety record this action will discourage reporting of incidents or safety problems.
And many companies have established reward practices that could put them in jeopardy due to how OSHA has been enforcing these regulations. Also, reward and disciplinary practices can be viewed as discrimination depending on how they are imposed. It is important that all employees be treated the same, and that effective, established policies are followed.
The Occupational Safety and Health Act of 1970 was put into place to ensure that workers in the Unites States of America have a safe and healthy workplace. Section 11(c) of the OSH Act prohibits an employer from discriminating against an employee because the employee reports an injury or illness. The OSH Act states that: 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). If employees do not feel free to report injuries or illnesses, the employer’s entire workforce is put at risk. 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.
There are several types of workplace policies and practices that could discourage reporting and could constitute unlawful discrimination and a violation of section 11(c) and other whistleblower protection statutes. Some of these policies and practices may also violate OSHA’s recordkeeping regulations, particularly the requirement to ensure that employees have a way to report work-related injuries and illnesses. 29 C.F.R. 1904.35(b)(1). OSHA has also observed 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, the agency does not condone a program that encourages discrimination against workers who report injuries.
Discriminatory acts may include:
• Firing
• Assignment to an undesirable job or shift
• Blacklisting
• Demotion or denial of a promotion
• Denial of benefits earned, such as sick leave or vacation time
• Dismissal
• Harassment
• Loss of seniority
• Reduction in pay or hours
• Taking away company housing
The following is a summary of the most common potentially discriminatory policies cited by the Department of Labor (DOL) and OSHA:
• Employers having a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury.
This practice, although less common, than in the 1970s, still exists in some workplaces. The ability to report workplace hazards, close calls, injuries and illnesses is a crucial part of injury and illness prevention, and a protected right of the employee. OSHA and the DOL have zero tolerance for employers that take disciplinary action against employees solely due to reporting a workplace injury, illness or unsafe condition.
• The employee who reports an injury or illness is disciplined, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries and illnesses (see examples below).
Examples:
o An employee is disciplined, terminated or discriminated upon for failing to report the injury in accordance to the employer’s policies and procedures.
o The employee may have reported after the reporting deadline, or in a manner not in accordance to the company’s policies and procedures, such as failing to complete a form or reporting to the wrong person.
• An employee reports an injury, and the employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee. 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. In some cases, however, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury.
This may be intentional or unintentional, and requires a considerable investigation by OSHA. This reaction is often thought of as an overstep of employee rights, and leaving the employer with no ability to enforce their safety program policies and procedures. As in all disciplinary actions, every employee must be treated the same as any other. Employers must be very careful when taking disciplinary acts against an injured employee. This is why documentation is crucial with all policies and procedures, and violations thereof.
A company must carefully consider all disciplinary actions against injured employees even when merited. In my experience, I have found companies that have terminated an employee for failing to comply with safety related policies and procedures find themselves liable through their worker compensation insurance for time loss and all-related medical bills. After terminating the employee, they have no means of controlling the claim. In nearly every case, an injured employee will receive full worker compensation benefits after the injury, whether or not, it was a safety violation.
When an employee intentionally causes a workplace injury or illness, or when the event injures or affects other employees, it is always best to have documentation of the event, related history and any previous warnings. This is when having a written disciplinary procedure is very important. It is also a good idea to review the discipline with OSHA and the worker compensation insurance carrier prior to carrying out the disciplinary action.
In order to ensure that you’re following OSHA and DOL regulations, an employer’s disciplinary policy and procedure should always meet the following criteria:
• Be in writing
• Non-discriminatory/treating every employee the same no matter what position they hold
• Clearly stated to be understandable
• Clearly outline what is considered a “Safety Violation”
• Clearly outline the disciplinary action process (see example below):
Example:
• First warning – Documented in writing and reviewed with employee
• Second warning – Documented in writing with days without pay
• Third warning – Final written with termination warning
• Fourth warning – Written with termination.
• Policies and procedures be in accordance to the law
• Documented with employee acknowledgement for all employees at initial hire. Recommended forms of documentation (see below):
o Written safety programpolicies and procedures
o Employee handbook
o New employee safety orientation
When immediate termination is justified for an employee who has acted in an illegal manner, committed a grossly negligent act, purposely endangered others, or is under the influence of drugs or alcohol, an employer has the right to terminate employment. But only after you have made sure it is documented and legal.
OSHA encourages safety program policies and procedures, and the consistent enforcement of those policies and procedures. These safety rules are possibly the most important part of an injury and illness prevention program, but the employer must ensure that the employee’s rights are not violated when taking disciplinary actions against those involved.
• The employer established programs that unintentionally or intentionally provide employees an incentive to not report 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, or employees that have reported an injury or illness have deductions from bonuses, cash incentives or other awards.
This is not an uncommon violation to the rule, and unfortunately, in those cases I have dealt with, they have quite often been unintentional. The employer had put together what they thought was a good safety program incentive to award employees for safe work practices, and in turn, had created a discrimination against those that reported an injury or illness according to OSHA’s interpretation of the standard. The incentive, although in good intentions, had created an environment where employees were punished for reporting an injury or illness, and the employees were actually given an incentive for not reporting workplace close calls, hazards, injuries and illnesses. Such incentives can also cause problems with morale and employee relations. It’s very difficult to administer a safety incentive program that doesn’t discriminate. This is why I do not recommend individual or group awards for having no injuries or illnesses. Tying the award to proactive safety steps is a much better approach.
Rewarding employees for proactive actions designed to make the workplace safer. This could include creating new engineering controls for injury and illness prevention or participating in special safety-focused events. You do not want to take any action that in any way punishes those involved in an injury or illness. Those awards make a disincentive for employees to maintain a safe work behavior. Catering lunch for the entire staff to have a safety meeting is much better than rewarding employees for no loss time incidents. In general, I have found that gift certificates are almost always favored over buying dinner for an employee as an award for a good deed. You can give out gift certificates for employees who spot safety hazards or identify ways to make the workplace safer.
The OSH Act of 1970 is the prelude to what is known now as Whistleblower Protection, and the news of violations, and hefty fines for retaliating against an employee for reporting unsafe or illegal work practices has been increasing.
Here are a few recent news events related to whistleblowers:
January 10, 2017 – US Department of Labor sues Jasper Roofing Contractors, CEO for retaliation after employee cooperates with OSHA investigation
January 05, 2017 – U.S. Labor Department sues food manufacturer, owner that terminated employee who tried to call 911 after co-worker suffered amputation
December 28, 2016 – OSHA finds global railroad company retaliated against worker who reported safety concerns about track defects
And a news release related to the pallet industry from July of 2016:
July 11, 2016 – Nation’s leading pallet company agrees to pay fired worker $105K, resolving U.S. Labor Department lawsuit
Those were just a few news releases connected to whistleblowing. In August of 2016, OSHA released a new pilot program to ensure whistleblower related complaints are reviewed faster. The pilot became effective Aug. 1, in the agency’s San Francisco region, which includes California, Nevada, Arizona, Hawaii, and the islands of American Samoa, CNMI and Guam.
Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor to request an investigation by OSHA’s Whistleblower Protection Program.
OSHA Considers the Following as Protected Conduct:
• Raising a complaint to a regulatory agency
• Raising a complaint to an employer
• Participating in inspections
• Speaking to an OSHA compliance officer
• Asking to review an employer’s exposure and injury records
• Participating in a safety committee
It’s quite clear, the DOL and OSHA are going after companies that take actions against whistleblowers, allowing 90 to 180 days to file a complaint depending on the situation.
According to OSHA, such actions against whistleblowers include:
• Applying or issuing a policy which provides for an unfavorable personnel action due to activity protected by a whistleblower law enforced by OSHA
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failing to hire or rehire
• Firing or laying off
• Intimidation
• Drug testing employees just for reporting or experiencing an injury
• Making threats
• Reassignment to a less desirable position, including one adversely affecting prospects for promotion
• Reducing pay or hours
• Suspension
Your safety program, including incentives and disciplinary practices, need to be reviewed with an eye to consistency and evaluating their impact on reporting of unsafe practices. Anything that OSHA deems is likely to suppress open communications could land your company in trouble.
Editor’s Note: Jary Winstead is a safety consultant, author and trainer who serves a variety of industries including the forest products sector. He owns Work Safety Services LLC and can be reached at SAFEJARY@gmail.com.
