Under the general heading of whistleblowing protection, OSHA has raised concerns about a number of common industry practices designed to lower the cost of workers compensation. Policies such as employees reporting (or not reporting) injuries, disciplinary actions taken against workers filing comp claims, and even safety incentive programs, may discriminate against employees who have been injured. And if discrimination can be proven, employers are at risk for major penalties.
Richard Fairfax, Deputy Assistant Secretary for OSHA, has distributed a memo alerting his regional staff to potential discrimation against injured employees. Now that his staff has been alerted, employers would do well to educate themselves about the issues.
Fairfax's memo identifies four potential areas of discrimination. We'll analyze them one at a time:
Taking disciplinary action against injured employees might involve discrimination
Fairfax points out that an employee's reporting of a claim is a protected act. If injured employees are disciplined every time an injury is reported, this would be a clear case of discrimination. If, on the other hand, the discipline was triggered by specific violation of safety rules, employers could and should document the violation; keep in mind that this type of documentation must be done in all situations, not just where an employee is injured. It is also worth noting that comp, being a no-fault system, would in most instances still pay benefits to injured employees despite the safety violation.
Penalizing injured employees for late reporting of an injury might involve discrimination
LynchRyan encourages employers to require prompt reporting of all injuries; the existence of this type of policy is not in itself discriminatory. However, OSHA will review the application of disciplinary actions on a case-by-case basis, considering such factors as whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate, whether the employee acted reasonably, and whether the discipline imposed is proportionate to the violation. In this and other related matters, one shoe does not fit all!
Penalizing injured workers who violate safety rules might involve discrimination
OSHA recognizes the need to enforce legitimate workplace safety rules. However, these rules need to be specific and they need to be enforced and documented on a regular basis, not just when someone reports an injury. For example, safety rules that employees "maintain situational awareness" or "work carefully" are inherently vague and offer the potential for abuse. Employers must be prepared to document that injured workers are not singled out for attention in this area.
Some performance incentive programs might involve discrimination
Many employers reward their workers for injury-free workdays. For example, if no injuries are reported for a 30 day period, workers might be eligible for a raffle or might enjoy a pizza lunch. OSHA implies that these practices might by their very nature stifle the reporting of injuries and thus violate OSHA standards. For example, an injured worker might decide not to report an injury in order to keep the clean record intact. Because the reporting of an injury is a protected act, the employer is vulnerable to charges of discrimination, even though the employee made the decision not to report the incident.
OSHA recommends that safety incentive programs focus not on reported injuries but on safety initiatives: for example, rewarding a crew for completing a safety training program or for identifying and correcting workplace hazards.
In view of OSHA's stance in the area of safety incentive and disincentive programs, employers need to make sure their policies do not discriminate. That means:
1. Be careful to document specific safety violations involving injured workers
2. Before disciplining an injured worker for a late report, examine the circumstances carefully
3. In disciplining an injured worker for violating safety rules, be very specific and document the violations in writing
4. Review any safety incentive programs for the unintended effect of stifling the reporting of injuries; if your program operates in this manner, consider revising it to address OSHA's concerns
Prompt reporting, discipline for safety violations and incentive programs can be useful tools in a comprehensive approach to a safe workplace. Like all tools, they can be misused and abused. OSHA has made it quite clear that the rules themselves might not be sufficient and, in some cases, they might be illegal. Claimant attorneys will surely file the Fairfax memo in their tool box for pursuing claims against employers. Prudent managers should take their own notes and adjust current programs accordingly.