{"id":6949,"date":"2012-06-01T00:00:00","date_gmt":"2012-06-01T00:00:00","guid":{"rendered":"https:\/\/insulation.org\/io\/articles\/recent-changes-to-oshas-employee-discrimination-policies\/"},"modified":"2012-06-01T00:00:00","modified_gmt":"2012-06-01T00:00:00","slug":"recent-changes-to-oshas-employee-discrimination-policies","status":"publish","type":"articles","link":"https:\/\/insulation.org\/io\/articles\/recent-changes-to-oshas-employee-discrimination-policies\/","title":{"rendered":"Recent Changes to OSHA\u2019s Employee Discrimination Policies"},"content":{"rendered":"

On March 12, 2012, Richard E. Fairfax, the Deputy Assistant
\nSecretary for OSHA, issued “OSHA’s Memorandum on Employer Incentive and
\nDisincentive Policies and Practices” to all regional Administrators and
\nWhistleblower Program Managers. This memo identifies OSHA discrimination 11(c)
\nviolations to a level that many employers may not have anticipated. <\/span><\/p>\n

Most employers have been aware for years of the
\nwhistleblower protection afforded to employees who make a complaint to their
\nemployer or to OSHA regarding safety hazards in their workplace. This
\nprotection is afforded to all employees under Section 11(c) of the Occupational
\nSafety and Health Act (OSH). That section states the following:<\/span><\/p>\n

“No person shall discharge
\nor in any manner discriminate against any employee because such employee has
\nfiled or instituted or caused to be instituted any proceeding under or related
\nto this Act or has testified or is about to testify in any such proceeding or
\nbecause of the exercise by such employee on behalf of himself or others of any
\nright afforded by the Act.”<\/span><\/p>\n

What many may not realize is
\nthat OSHA has developed a regulation under 29 CFR 1904.36 that extends the
\nprotection of Section 11(c) to employees reporting a work-related fatality,
\ninjury, or illness. Title 29 CFR 1904.36 states the following:<\/span><\/p>\n

“Section 11(c) of the Act prohibits you from
\ndiscriminating against an employee for reporting a work-related fatality,
\ninjury or illness. That provision of the Act also protects the employee who
\nfiles a safety and health complaint, asks for access to the Part 1904 records,
\nor otherwise exercises any rights afforded by the OSH Act.”<\/span><\/p>\n

While most states have
\nworkers’ compensation laws that prohibit discrimination against any employee
\nwho files or testifies in a workers’ compensation claim, it appears that OSHA
\nis wary of employer misconduct when it identified an area in which it perceives
\nemployees are without protection<\/span>. <\/span><\/p>\n

For several years, OSHA has enforced
\ndiscrimination complaints brought by employees who have felt that they were
\ndiscriminated against because they reported a workplace safety violation. Mr.
\nFairfax’s memorandum serves to highlight and explain the issue further. The
\nmemorandum outlines four actions by employers that might have the potential of
\nbeing discriminatory. <\/span><\/p>\n

The first paragraph of the four-paragraph memo
\naddresses situations when employers have policies that require disciplinary
\naction against employees who are injured on the job, regardless of the
\ncircumstances surrounding the injury. <\/span><\/p>\n

“Reporting an injury is always a protected
\nactivity. OSHA views discipline imposed under such a policy against an employee
\nwho reports an injury as a direct violation of section 11(c) or [Federal
\nRailroad Safety Act] FRSA.” <\/span><\/p>\n

It is unclear how Mr.
\nFairfax came to that conclusion. It appears that Mr. Fairfax is relying on the
\nlanguage in 1904.35(b), which encourages employers to develop methods for
\nemployees to report work injuries, and 1904.36, which purports to protect
\nemployees from discrimination when reporting a work injury, to support his
\nproposition. In other words, since employers are supposed to encourage and even
\nrequire employees to report work injuries, employers will not be permitted to
\nuse such a report to discriminate against them. <\/span><\/p>\n

This change creates a problem for employers who
\nhave a policy that may result in the termination of an employee who has too
\nmany injuries. This policy is based on the rationale that such an employee is
\nobviously not complying with job safety rules; if he\/she were complying, he\/she
\nwould not suffer as many injuries. Such a policy may be defensible, but such a
\ndefense could be costly. After all, no employer can watch every employee all
\nthe time, so injuries may occur with no witnesses to assist in establishing the
\ncause of the injury. As a result of this change, it is unclear if employers
\nwill continue to be allowed to terminate employees who are injured too many
\ntimes, even if it is a result of a failure to follow the safety rules. However,
\nmaking such repeated injuries part of your safety enforcement program may still
\nbe possible, if the program is created and administered carefully with all
\nefforts being made to treat the employee fairly and protect his\/her rights.<\/span><\/p>\n

The second and third paragraphs in the memo are
\nsomewhat similar to each other. In paragraph two, Mr. Fairfax discusses the
\nscenario of when an employee reports an injury and is disciplined by the
\nemployer because he\/she failed to report the incident in the time or manner
\nthat the employer specified. Mr. Fairfax states that this scenario deserves
\nfurther scrutiny because there is potential for violating section 11(c) or the
\nFRSA.<\/span><\/p>\n

“OSHA recognizes that employers have a legitimate
\ninterest in establishing procedures for receiving and responding to reports of
\ninjuries. To be consistent with the statute, however, such procedures must be
\nreasonable and may not unduly burden the employee’s right and ability to
\nreport.”<\/span><\/p>\n

This statement
\nmay create obstacles for employers because many employers, to comply with
\n1904.35(b), have set up procedures for reporting injuries and illnesses, and
\nautomatically challenge any report that does not follow the established
\nprocedure. It is possible that Mr. Fairfax’s memorandum may challenge those
\npolicies. For example, an employer may no longer be able to consider a six
\nweek, or a six month, delay in reporting an injury suspicious and as grounds
\nfor denying the employee’s workers’ comp claim. Additionally, Mr. Fairfax did
\nnot define the “discipline” enforced by an employer, which could lead to
\nfurther confusion for employers. Will employers be challenged by OSHA and
\nforced to undergo an OSHA discrimination investigation because they treat
\nclaims that are filed incorrectly differently than those filed in the correct
\nmanner? <\/span><\/span><\/p>\n

The third paragraph also involves disciplining an
\nemployee for violating safety rules. In this scenario, Mr. Fairfax explains
\nthat he supports enforcing safety rules, but he is wary of employers unfairly
\nusing the failure to abide by safety rules as a justification for disciplining
\nan employee after he\/she has been injured. The memo seeks to ensure that
\nemployees are disciplined consistently for failing to abide by safety rules,
\neven when no injuries have occurred. Mr. Fairfax also discusses vaguely-worded
\nsafety rules, such as a requirement that employees “maintain situational
\nawareness.” Mr. Fairfax asserts that these types of safety rules can be used by
\nemployers, in the result of an accident, to unfairly discipline employees who
\nreport an injury.<\/span><\/p>\n

In both the second and third paragraphs, the memo
\nimplies that the employer may use the rule violation as a pretext for taking
\naction against the employee. In both cases, he states that such conduct by the
\nemployer will be the subject of review by OSHA, with scrutiny being given to
\nhow the employer applies the rule in situations where violations occurred
\nwithout any injuries. He also indicates that vague rules will be “carefully”
\ninvestigated.<\/span><\/p>\n

In his last paragraph, Mr.
\nFairfax touches on a practice more employers are embracing as a means to
\nencourage compliance with the company safety rules?incentives. For a few years,
\nOSHA has been discussing different types of incentive programs. OSHA has fairly
\nconsistently criticized incentive programs that use recordable injuries,
\nlost-time injuries, or injuries in general as the cornerstone to incentivize
\nemployees. In fact, several years ago, OSHA’s concerns with such incentive
\nprograms were addressed in the failed ergonomics standard. But, in his
\nmemorandum, Mr. Fairfax suggests that incentive programs that are linked to the
\nelimination or reporting of injuries may also be considered potentially
\ndiscriminatory conduct.<\/span><\/p>\n

“Incentive programs that discourage employees
\nfrom reporting their injuries are problematic because, under section 11(c), an
\nemployer may not ?in any manner discriminate’ against an employee because the
\nemployee exercises a protected right, such as the right to report an injury.” <\/span><\/p>\n

“If an employee of a firm with a safety incentive
\nprogram reports an injury, the employee, or the employee’s entire work group,
\nwill be disqualified from receiving the incentive, which could be considered
\nunlawful discrimination.”<\/span><\/p>\n

The implication to these statements is that if
\nyou fail to award an incentive to an employee or his\/her work group because
\nhe\/she reports an injury, you are engaging in unlawful discrimination. <\/span><\/p>\n

So, now you may need to be concerned that if you
\nuse an injury report-based incentive program, you may generate an OSHA
\ndiscrimination investigation if an employee or a group of employees is denied
\nan incentive because one of them reported an injury.<\/span><\/p>\n

I have counseled against such incentive programs
\nin the past, but not due to the potential for discrimination. My concern is
\nthat such a program could, because of peer pressure, cause an employee to work
\nwhen injured, especially if the incentive is good enough. <\/span><\/p>\n

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

OSHA frequently talks about
\nthe “chilling effect” an employer’s actions may have on an employee reporting
\nunsafe conditions in the workplace. Perhaps Mr. Fairfax should consider the
\n“chilling effect” his memo may have on employers in maintaining an effective
\nsafety program. Recently, an administrative law judge upheld a willful
\nviolation against an employer, finding that, among other things, the employer
\ndid not have an effective disciplinary program (DeWitt Excavating, Inc. CCH
\nParagraph 33,174). In another recent decision, a citation was upheld, in part,
\nbecause the employer did not discipline a transgressing supervisor (ComTran
\nGroup, Inc.CCH Paragraph 33171). Both of these recent decisions may make it
\nmore difficult for employers to implement safety protocol without of fear of
\nviolating federal or state regulations.<\/span><\/p>\n

As a result of this recent memo, employers will
\nhave more challenges to face when developing effective and legal safety
\nprograms. After a safety program is developed and communicated to all employees,
\nand after employees have demonstrated their knowledge of those rules, the best
\ntool the employer has left to achieve compliance with the program is consistent
\nenforcement. <\/span><\/p>\n

Under these somewhat ambiguous guidelines, you
\nhave just been given a new challenge to run a safe worksite or plant and to
\nmake sure all employees are on board with your safety program. Some of the
\nthings you need to do include the following:<\/span><\/p>\n

 <\/span><\/p>\n

1.\u00a0\u00a0 Be sure all of your
\nsafety rules are specific and provide definite requirements.<\/span><\/p>\n

2.\u00a0\u00a0 Be sure you
\neffectively communicate your safety rules to your employees.<\/span><\/p>\n

3.\u00a0\u00a0 Be sure to ascertain
\nthe knowledge of your employees of the safety rules on which they have been
\ntrained.<\/span><\/p>\n

4.\u00a0\u00a0 Be sure to have a
\ndetailed, definite, and easily understood (by all employees) safety enforcement
\nprogram.<\/span><\/p>\n

5.\u00a0\u00a0 Be sure your safety
\nprogram is enforced consistently; you cannot afford to make exceptions.<\/span><\/p>\n

6.\u00a0\u00a0 Don’t shy away from issuing discipline when an
\nemployee suffers an injury because he\/she violated a safety rule.<\/span> <\/span><\/p>\n

7.\u00a0\u00a0 Before you issue discipline for any safety
\nviolation, be sure you have done a thorough and effective investigation.<\/span><\/span><\/p>\n

8.\u00a0\u00a0 Be sure the reasons
\nfor issuing discipline following an injury are consistent with your enforcement
\nprogram.<\/span><\/p>\n

9. Be sure to document
\nthe circumstances leading to the discipline.<\/span><\/p>\n

10. Retain all disciplinary records so they are
\navailable to demonstrate that you are consistently enforcing your safety
\nprogram in both accident and non-accident situations.<\/span><\/span><\/p>\n

11. Don’t be afraid to
\ndiscipline, but be sure you can demonstrate that any discipline is for a
\nlegitimate violation of company work rules.<\/span><\/p>\n

 <\/span><\/p>\n

Notes<\/span><\/b><\/p>\n

To view the memorandum in full: <\/a>http:\/\/www.osha.gov\/as\/opa\/whistleblowermemo.html.<\/i><\/span><\/p>\n

“Employer Safety Incentive and Disincentive Policies and
\nPractices,” last modified March 12, 2012.<\/span><\/p>\n

 <\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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<\/p>\n","protected":false},"author":[44],"featured_media":0,"template":"","categories":[24,21,291,32],"class_list":["post-6949","articles","type-articles","status-publish","hentry","category-contracting","category-business-managment","category-association-news","category-health-and-safety","author-gary-auman"],"acf":[],"yoast_head":"\nRecent Changes to OSHA\u2019s Employee Discrimination Policies - Insulation Outlook Magazine<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/insulation.org\/io\/articles\/recent-changes-to-oshas-employee-discrimination-policies\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Recent Changes to OSHA\u2019s Employee Discrimination Policies\" \/>\n<meta property=\"og:description\" content=\"On March 12, 2012, Richard E. 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