Your incentive and recognition program might not pass OSHA’s “sniff test” if “the incentive involved is of sufficient magnitude that failure to receive it ‘might have dissuaded reasonable workers from’” reporting, says Fairfax.
In the memo, Fairfax states: “Section 11(c) of the OSH Act prohibits an employer from discriminating against an employee because the employee reports an injury or illness … 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). Other whistleblower statutes enforced by OSHA also may protect employees who report workplace injuries.”
According to Fairfax, employees who do not feel free to report injuries or illnesses place the entire work force 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,” says Fairfax.
The memo “clarifies existing protections for injury reporting under Section 11(c), other whistleblower programs (e.g. FRSA) and OSHA’s recordkeeping regulations,” said Peg Seminario, safety and health director for the AFL-CIO, in a March 19 letter to colleagues. “The memo should be very helpful in efforts to address incentive/disincentive policies and practices both through OSHA 11(c) and enforcement actions and dealing directly with employers on these issues.”
Incentive Polices and Practices at Issue
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, notes Fairfax. Some of these policies and practices also may violate OSHA's recordkeeping regulations, particularly the requirement to ensure that employees have a way to report work-related injuries and illnesses. In his memo, Fairfax lists the most-common potentially discriminatory policies, and says, “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.”
Specifically, Fairfax mentioned the following as policies and practices employers need to change:
- The agency has received reports of employers who 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, therefore OSHA views discipline imposed under such a policy against an employee who reports an injury as a direct violation of section 11(c) or FRSA.
- In another situation, 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. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating section 11(c) or FRSA. 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. 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, nor may enforcement of such rules be used as a pretext for discrimination.
- 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. An employer should not, however, attempt to use a work rule as a pretext for discrimination against a worker who reports an injury. A careful investigation is needed. 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 should also 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.
- Some employers establish 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. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities such as identifying hazards or participating in investigations of injuries, incidents or near misses.
“While OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries,” says Fairfax.
Seminario called the memo “a great step forward in trying to address the growing problem of policies and practices that discourage reporting of injuries. Our next steps must be first to make sure that the memo is successfully implemented and then to build on this to strengthen protections through regulatory and enforcement actions.”