For several years, we have encouraged employers to move away from safety management programs that primarily track the program’s effectiveness based upon recordable injuries and utilize monetary incentive programs based in whole or in part on the number of recordable workplace injuries and illnesses experienced by an employee or group of employees.
However, employers have another reason to increasingly shift away from programs primarily driven by recordables. Even before the current administration’s leaders took office, they questioned the accuracy of employer recordkeeping and asserted that employees underreport workplace injuries in order to participate in safety incentive programs, or as a result of pressure imposed upon them by employers either on an intentional basis or as a result of their safety management processes.
Moreover, all branches of the U.S. Department of Labor steadily have escalated their emphasis on the prosecution of whistleblower claims. OSHA and other federal agencies actively have encouraged employees to be sensitive to possible retaliation and discrimination on the basis of protected behavior, including safety-related activities (especially the reporting of recordable injuries). Numerous decisions have come out in the last few years in which OSHA claimed that employers who discharged employees for safety violations associated with injuries were using “safety violations” as a pretext for retaliation.
Increased Focus On Incentive Programs
Last June, Assistant Secretary of Laobr Dr. David Michaels issued a memorandum stating that “a company whose incentive program has the potential to discourage worker reporting fails to meet the Voluntary Protection Programs (VPP) safety and health management system requirements.” While OSHA’s official position is that it would only refuse VPP approval if an incentive program discourages employees from reporting injuries, OSHA’s public and private comments since that time indicate that the agency may view all such programs negatively.
Then, on Sept. 21, 2011, following the VPP announcement, OSHA issued an updated Whistleblower Investigation Manual, and followed up on March 1 with a major restructuring of the Office of Whistleblower Protection Programs, which further elevated the importance of whistleblower enforcement. The office now reports directly to Michaels. This move, along with the substitution of employer rights and whistleblower information for safety subjects in the widely required OSHA 10-hour safety training program have caused observers to question why OSHA is emphasizing whistleblower claims when its core safety enforcement efforts cry out for more resources.
With these concerns in mind, we recommend the following steps:
1. Carefully review the March 12 memorandum on Employer Safety Incentive and Disincentive Policies and Practices.
2. Recognize that OSHA considers reporting an injury to always be a “protected activity,” and will be suspicious if an employee is disciplined, terminated or suffers other adverse action after reporting a workplace injury. OSHA considers a policy to discipline all employees who are injured, regardless of fault, to be discriminatory.
3. OSHA also states that it will “carefully scrutinize” situations where an 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. OSHA grudgingly recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries, but emphasizes that going forward, employers carefully should examine their procedures to ensure that OSHA will not conclude that the procedures “unduly burden the employee’s right and ability to report.” OSHA uses as an example the employee who allegedly does not immediately realize that injuries are serious enough to report.
4. OSHA also reiterates in the memorandum its increasingly aggressive consideration of whether application of facially neutral rules may be a pretext for taking action against employees for reporting injuries. In the context of disciplining employees for not following reporting procedures, OSHA indicates that it will consider whether an employee’s deviation was minor, inadvertent or deliberate; whether the employee had a reasonable basis for acting as he or she did; whether the employer can show the importance of the rule and its enforcement; and whether the discipline imposed appears disproportionate to the employer’s interest.
5. The memorandum next takes aim at a more problematic area where OSHA raises its concern that employers may “attempt to use a work rule (safety) as a pretext for discrimination against a worker who reports an injury.” Put simply, OSHA will seek to determine if it appears that injured employees are disciplined more frequently or severely than uninjured employees who act in an unsafe manner. OSHA states that it will consider whether the employer actively monitors the workplace for compliance with the work rules “in the absence of an injury.” OSHA will consider whether “the employer consistently imposes equivalent discipline against employees who violate the work rule in the absence of an injury.” OSHA also carefully will scrutinize “vague rules, such as a requirement that employees maintain situational awareness or work carefully.”
6. Such a focus makes it essential that employers review and make effective near-miss, self-reporting, safety observation and similar programs.
7. Finally, OSHA expresses concerns about employers establishing programs “that unintentionally or intentionally provide employees an incentive to not report injuries.” OSHA objects to, but does not declare automatically illegal, programs awarding prizes or money to employees or a team of employees if no one from the team is injured over a certain period of time, but OSHA makes it clear that it doesn’t like these efforts. OSHA recommends that employers instead provide incentives to employees who use safe practices, get involved, obtain additional training, etc. We agree that there are countless effective ways to track and reward safe behaviors and to engage employees, but we also recognize that employers want to track and consider recordables and related subjects in incentive and tracking programs. OSHA has provided little guidance on the balance and mix of actions, and left this difficult analysis to us.
8. This memorandum, if viewed in the context of current OSHA whistleblower actions against general employers under Section 11(c) of the OSH Act and against railroad carriers, contractors or subcontractors, raises other questions that employers should carefully consider, including:
(a) What is the role of recordable injuries and measuring the effectiveness of safety management processes and incentivizing employees?
(b) Should an employer include recordable injuries as one of a number of factors in an incentive program?
(c) Is it lawful to include recordable injuries along with other safety and non-safety factors in bonuses that consider productivity, quality, safety and other operational factors?
(d) What “leading indicators” should be tracked and incentivized, and by what process?
(e) Has the employer reviewed supervisor and management bonuses to determine if such bonuses unintentionally discourage employees from reporting injuries, or could be perceived as a discouragement by OSHA?
We hardly need another reason to encourage clients to review and revamp incentive programs or be wary of increased risks associated with whistleblower claims, but these developments certainly increase the sense of urgency.
Howard Mavity is a senior partner with the Atlanta office and co-chair of the Workplace Safety and Catastrophe Management Practice Group for Fisher & Phillips LLP, one of the nation’s leading law firms in labor and employment law. He has provided counsel for more than 200 occasions of union activity, guided unionized companies and has managed nearly 400 OSHA fatality cases. He also has coordinated complex inspections involving multi-employer sites, corporate-wide compliance and issues involving criminal referral. Mavity is active in rulemaking with federal and state OSHA and has handled cases before the EEOC, OFCCP, NLRB and numerous other state and federal agencies. He frequently speaks to professional groups, lectures, conducts training for numerous private and governmental employers and speaks at a national MBA program.