Hunton Employment & Labor Perspectives

On March 12, 2012, OSHA issued a memorandum expanding on specific policies and practices that OSHA asserts can discourage employees from reporting workplace injuries or illnesses, and thus, violate the Occupational Safety and Health Act (“OSH Act” or “Act”) and/or the Federal Railroad Safety Act (“FRSA”).  Intended as guidance to both field compliance officers and whistleblower investigative staff, the memorandum notes four programs or practices that, while potentially useful to management as a metric for safety performance, cannot be condoned without careful scrutiny because of the risk they could chill employee reporting of workplace injuries or illnesses.

They include:

• Policies of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury;
• Situations where an employee reports an injury or illness and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries or illnesses;
• Situations where an employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee; and
• Programs that unintentionally provide incentives to not report injuries, such as periodic drawings or prizes for employees or departments if no one from that department is injured over some period of time.

OSHA noted these situations are problematic and should be scrutinized by its investigators because, under the Act, an employer may not “in any manner” discriminate against an employee because the employee exercises a protected right to report an injury.  The memorandum discusses alternative programs employers may implement that do not create the same “disincentives,” such as “incentives that promote worker participation in safety-related activities, [for example,] identifying hazards or participating in investigations of injuries, incidents, or ‘near misses.’” Employers subject to the Act and/or the FRSA should reevaluate their policies to ensure they do not directly or indirectly run afoul of the new guidance to investigators.