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Ensuring that employees can report injuries or illnesses without fear of retaliation is crucial to protecting worker safety and health.

The Innovative Workplace

Safety programs and OSHA compliance—Safety programs are great—but not if they discourage injury reporting

By Don Phin

Many employers try to reduce accidents and related work comp expenses by introducing safety programs that provide a variety of incentives. The problem is, some of those programs and incentives can get your client in trouble with OSHA. Two recent OSHA memos related to its Voluntary Participation Programs (VPP) and Whistleblower provisions outline the cans and cannots of safety incentive programs. I can tell you from experience that most clients have no clue about these guidelines.

To begin with, section 11(c) of the Occupational Safety and Health Act prohibits an employer from discriminating against an employee because the employee reports an injury or illness. The concern is over employer practices that can discourage employees from reporting injuries and that violate section 11(c) or other whistleblower statutes. As you will see, OSHA seems to believe that many employer safety programs fit the discouragement criteria.

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. If employees do not feel free to report injuries or illnesses, the entire workforce is put 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.

Several kinds of workplace policies and practices could discourage reporting and therefore could constitute unlawful discrimination and a violation of section 11(c) and other whistleblower protection statutes. 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. Below I list the most common potentially discriminatory policies.

OSHA also has observed that the potential for unlawful discrimination under all of these policies may increase when management or supervisor bonuses are linked to lower reported injury rates. Although OSHA appreciates employers that use safety as a key management metric, it will not condone a program that encourages discrimination against workers who report injuries (even if there is no proof that the incentive in fact does so)!

1. OSHA has received reports of employers that have a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. For example, an employer's policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury.

2. 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. 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. In investigating such cases, OSHA may consider factors such as whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate; whether the employee had a reasonable basis for acting as he or she did; whether the employer can show a substantial interest in the rule and its enforcement, and whether the discipline imposed appears disproportionate to the asserted interest.

3. In a third situation, an employee reports an injury, and the employer imposes discipline on the ground that the injury resulted from the employee's violation of a safety rule. In this case the employer may 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 employees 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 also should 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. Where such general rules are involved, the investigation must include a careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than non-injured employees may suggest that the rule is a pretext for discrimination.

4. Finally, some employers establish programs that either intentionally or unintentionally give employees an incentive not to 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 may or may not be well-intentioned efforts by employers to encourage their workers to use safe practices.

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. For example, if an employee of a firm with a safety incentive program reports an injury, the employee, or the employee's entire work group, may be disqualified from receiving the incentive. This could be considered unlawful discrimination. One important factor to consider is whether the incentive involved is of sufficient magnitude that failure to receive it "might have dissuaded reasonable workers from" reporting injuries. This may be more likely in cases where an entire work group is disqualified because of a reported injury to one member because the injured worker in such a case may feel reluctant to disadvantage the other work group members.

When it discovers that an incentive program contains provisions that could discourage reporting of injury and illness, OSHA will advise the employer of OSHA's position and policy. The employer may choose to make an immediate change to its incentive program that will bring the program in line with the policy. If the employer needs more than a nominal period of time to eliminate the disincentive and/or to revise its program, it would be appropriate to designate this needed improvement as an improvement goal.

If OSHA identifies a problem with an incentive program, the employer will be given the opportunity to correct the problem within 90 days. During this time, the employer must eliminate the disincentive and/or revise its program. After the 90-day period, OSHA may choose to place the employer on one-year conditional status and require the employer to demonstrate one year of effective implementation of the program change.

Positive incentive programs

A positive incentive program encourages or rewards workers for reporting injuries, illnesses, near-misses, or hazards; and/or recognizes, rewards, and thereby encourages worker involvement in the safety and health management system. Such an incentive program can be a positive force and constitute an acceptable part of a quality safety and health management system. Examples of such positive incentives include providing T-shirts to workers who serve on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health programs; or throwing a recognition party at the successful completion of company-wide safety and health training.

In other words, your client can have a pizza party to encourage workers to prevent injuries, but not to celebrate the fact that injuries (and claims) were actually reduced, even if legitimately so.

Getting safety right is an ongoing challenge that pits employer expectations against employee rights. Whether or not safety incentive programs cause more harm than good, OSHA often finds that they do, and employers must be prepared to comply with OSHA's policies and address related concerns.

To learn more about OSHA Voluntary Protection Programs (VPP), go to https://www.osha.gov/dcsp/vpp/index.html and https://www.osha.gov/dcsp/vpp/policy_memo5.html.

If you would like a copy of a Declaration of No Injury form, please e-mail don@hrthatworks.com.

The author

Don Phin is president of the Employer Advisors Network, Inc., and the author of the "HR That Works" series of compliance and management products. He is the editor of "Employment Practices Liability Consultant" (EPLiC) published by IRMI. He can be contacted at www.donphin.com or at www.hrthatworks.com.

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