On March 12, 2012, Richard E. Fairfax, the Deputy Assistant
Secretary for OSHA, issued “OSHA’s Memorandum on Employer Incentive and
Disincentive Policies and Practices” to all regional Administrators and
Whistleblower Program Managers. This memo identifies OSHA discrimination 11(c)
violations to a level that many employers may not have anticipated.

Most employers have been aware for years of the
whistleblower protection afforded to employees who make a complaint to their
employer or to OSHA regarding safety hazards in their workplace. This
protection is afforded to all employees under Section 11(c) of the Occupational
Safety and Health Act (OSH). That section states the following:

“No person shall discharge
or in any manner discriminate against any employee because such employee has
filed or instituted or caused to be instituted any proceeding under or related
to this Act or has testified or is about to testify in any such proceeding or
because of the exercise by such employee on behalf of himself or others of any
right afforded by the Act.”

What many may not realize is
that OSHA has developed a regulation under 29 CFR 1904.36 that extends the
protection of Section 11(c) to employees reporting a work-related fatality,
injury, or illness. Title 29 CFR 1904.36 states the following:

“Section 11(c) of the Act prohibits you from
discriminating against an employee for reporting a work-related fatality,
injury or illness. That provision of the Act also protects the employee who
files a safety and health complaint, asks for access to the Part 1904 records,
or otherwise exercises any rights afforded by the OSH Act.”

While most states have
workers’ compensation laws that prohibit discrimination against any employee
who files or testifies in a workers’ compensation claim, it appears that OSHA
is wary of employer misconduct when it identified an area in which it perceives
employees are without protection.

For several years, OSHA has enforced
discrimination complaints brought by employees who have felt that they were
discriminated against because they reported a workplace safety violation. Mr.
Fairfax’s memorandum serves to highlight and explain the issue further. The
memorandum outlines four actions by employers that might have the potential of
being discriminatory.

The first paragraph of the four-paragraph memo
addresses situations when employers have policies that require 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. OSHA views discipline imposed under such a policy against an employee
who reports an injury as a direct violation of section 11(c) or [Federal
Railroad Safety Act] FRSA.”

It is unclear how Mr.
Fairfax came to that conclusion. It appears that Mr. Fairfax is relying on the
language in 1904.35(b), which encourages employers to develop methods for
employees to report work injuries, and 1904.36, which purports to protect
employees from discrimination when reporting a work injury, to support his
proposition. In other words, since employers are supposed to encourage and even
require employees to report work injuries, employers will not be permitted to
use such a report to discriminate against them.

This change creates a problem for employers who
have a policy that may result in the termination of an employee who has too
many injuries. This policy is based on the rationale that such an employee is
obviously not complying with job safety rules; if he/she were complying, he/she
would not suffer as many injuries. Such a policy may be defensible, but such a
defense could be costly. After all, no employer can watch every employee all
the time, so injuries may occur with no witnesses to assist in establishing the
cause of the injury. As a result of this change, it is unclear if employers
will continue to be allowed to terminate employees who are injured too many
times, even if it is a result of a failure to follow the safety rules. However,
making such repeated injuries part of your safety enforcement program may still
be possible, if the program is created and administered carefully with all
efforts being made to treat the employee fairly and protect his/her rights.

The second and third paragraphs in the memo are
somewhat similar to each other. In paragraph two, Mr. Fairfax discusses the
scenario of when an employee reports an injury and is disciplined by the
employer because he/she failed to report the incident in the time or manner
that the employer specified. Mr. Fairfax states that this scenario deserves
further scrutiny because there is potential for violating section 11(c) or the
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.”

This statement
may create obstacles for employers because many employers, to comply with
1904.35(b), have set up procedures for reporting injuries and illnesses, and
automatically challenge any report that does not follow the established
procedure. It is possible that Mr. Fairfax’s memorandum may challenge those
policies. For example, an employer may no longer be able to consider a six
week, or a six month, delay in reporting an injury suspicious and as grounds
for denying the employee’s workers’ comp claim. Additionally, Mr. Fairfax did
not define the “discipline” enforced by an employer, which could lead to
further confusion for employers. Will employers be challenged by OSHA and
forced to undergo an OSHA discrimination investigation because they treat
claims that are filed incorrectly differently than those filed in the correct
manner?

The third paragraph also involves disciplining an
employee for violating safety rules. In this scenario, Mr. Fairfax explains
that he supports enforcing safety rules, but he is wary of employers unfairly
using the failure to abide by safety rules as a justification for disciplining
an employee after he/she has been injured. The memo seeks to ensure that
employees are disciplined consistently for failing to abide by safety rules,
even when no injuries have occurred. Mr. Fairfax also discusses vaguely-worded
safety rules, such as a requirement that employees “maintain situational
awareness.” Mr. Fairfax asserts that these types of safety rules can be used by
employers, in the result of an accident, to unfairly discipline employees who
report an injury.

In both the second and third paragraphs, the memo
implies that the employer may use the rule violation as a pretext for taking
action against the employee. In both cases, he states that such conduct by the
employer will be the subject of review by OSHA, with scrutiny being given to
how the employer applies the rule in situations where violations occurred
without any injuries. He also indicates that vague rules will be “carefully”
investigated.

In his last paragraph, Mr.
Fairfax touches on a practice more employers are embracing as a means to
encourage compliance with the company safety rules?incentives. For a few years,
OSHA has been discussing different types of incentive programs. OSHA has fairly
consistently criticized incentive programs that use recordable injuries,
lost-time injuries, or injuries in general as the cornerstone to incentivize
employees. In fact, several years ago, OSHA’s concerns with such incentive
programs were addressed in the failed ergonomics standard. But, in his
memorandum, Mr. Fairfax suggests that incentive programs that are linked to the
elimination or reporting of injuries may also be considered potentially
discriminatory conduct.

“Incentive programs that discourage employees
from reporting their injuries are problematic because, under section 11(c), an
employer may not ?in any manner discriminate’ against an employee because the
employee exercises a protected right, such as the right to report an injury.”

“If an employee of a firm with a safety incentive
program reports an injury, the employee, or the employee’s entire work group,
will be disqualified from receiving the incentive, which could be considered
unlawful discrimination.”

The implication to these statements is that if
you fail to award an incentive to an employee or his/her work group because
he/she reports an injury, you are engaging in unlawful discrimination.

So, now you may need to be concerned that if you
use an injury report-based incentive program, you may generate an OSHA
discrimination investigation if an employee or a group of employees is denied
an incentive because one of them reported an injury.

I have counseled against such incentive programs
in the past, but not due to the potential for discrimination. My concern is
that such a program could, because of peer pressure, cause an employee to work
when injured, especially if the incentive is good enough.

Imagine for example, an
employer promises to award a team of employees a bomber jacket if there are no
OSHA recordable injuries for the first half of the year. One employee suffers a
recordable injury 30 days before the end of the time period but does not say
anything and works hurt for 30 days to ensure that everyone gets the jacket. After
the jackets are awarded, he/she reports the injury, which has gotten worse for
lack of treatment. So, everyone gets their jackets, and the employer has a
workers’ comp claim in which the costs have tripled because of the injured
employee’s actions. Now, according to the recent memorandum, in addition to
getting a more expensive workers’ comp claim, the employer might also have
engaged in discriminatory conduct. If you have an injury reporting-based
incentive program, you should give serious consideration to modifying it to a
program based on safety performance.

OSHA frequently talks about
the “chilling effect” an employer’s actions may have on an employee reporting
unsafe conditions in the workplace. Perhaps Mr. Fairfax should consider the
“chilling effect” his memo may have on employers in maintaining an effective
safety program. Recently, an administrative law judge upheld a willful
violation against an employer, finding that, among other things, the employer
did not have an effective disciplinary program (DeWitt Excavating, Inc. CCH
Paragraph 33,174). In another recent decision, a citation was upheld, in part,
because the employer did not discipline a transgressing supervisor (ComTran
Group, Inc.CCH Paragraph 33171). Both of these recent decisions may make it
more difficult for employers to implement safety protocol without of fear of
violating federal or state regulations.

As a result of this recent memo, employers will
have more challenges to face when developing effective and legal safety
programs. After a safety program is developed and communicated to all employees,
and after employees have demonstrated their knowledge of those rules, the best
tool the employer has left to achieve compliance with the program is consistent
enforcement.

Under these somewhat ambiguous guidelines, you
have just been given a new challenge to run a safe worksite or plant and to
make sure all employees are on board with your safety program. Some of the
things you need to do include the following:

1.   Be sure all of your
safety rules are specific and provide definite requirements.

2.   Be sure you
effectively communicate your safety rules to your employees.

3.   Be sure to ascertain
the knowledge of your employees of the safety rules on which they have been
trained.

4.   Be sure to have a
detailed, definite, and easily understood (by all employees) safety enforcement
program.

5.   Be sure your safety
program is enforced consistently; you cannot afford to make exceptions.

6.   Don’t shy away from issuing discipline when an
employee suffers an injury because he/she violated a safety rule.

7.   Before you issue discipline for any safety
violation, be sure you have done a thorough and effective investigation.

8.   Be sure the reasons
for issuing discipline following an injury are consistent with your enforcement
program.

9. Be sure to document
the circumstances leading to the discipline.

10. Retain all disciplinary records so they are
available to demonstrate that you are consistently enforcing your safety
program in both accident and non-accident situations.

11. Don’t be afraid to
discipline, but be sure you can demonstrate that any discipline is for a
legitimate violation of company work rules.

Notes

To view the memorandum in full: http://www.osha.gov/as/opa/whistleblowermemo.html.

“Employer Safety Incentive and Disincentive Policies and
Practices,” last modified March 12, 2012.