Discipline: OSHA warns on potential discrimination

by on May 8, 2012 · 0 Comment POSTED IN: Workplace Safety Network

Even good companies can easily run afoul of workplace discrimination laws – and end up getting sued or facing tough OSHA scrutiny.

OSHA’s deputy secretary identified three potentially discriminatory actions in a March 12 memo.

“There are several types of workplace policies and practices that could discourage reporting and could constitute unlawful discrimination and a violation of section 11(c) and other whistleblower protection statutes,” said OSHA deputy secretary Richard Fairfax.

“Some of these policies and practices may also violate OSHA’s recordkeeping regulations, particularly the requirement to ensure that employees have a way to report work-related injuries and illnesses,” Fairfax continued.

Rule of thumb: Will an OSHA inspector think the practice or policy creates a strong incentive to not report injuries?

Here are three policies and practices that are not necessarily discriminatory, but will raise OSHA’s eyebrows and cause them to dig deeper for evidence of discrimination:

1. Disciplining for every injury
Problem: One size-fits-all treatment of injuries, either by policy or in practice.
“[A]n 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,” Fairfax said.

OSHA will also look at your injury reporting records to see if injuries always result in discipline, even in the absence of a formal, written policy.

Bottom line: Before imposing discipline, make sure supervisors take the circumstances of the injury into account. As hard as it is to say, workers are sometimes injured through little to no fault of their own, such as:

  • Someone else creates the hazard (e.g., an operator drops a pallet behind another operator, who trips over it)
  • Equipment or engineering control failure (forklift brakes fail or machine guard comes apart during normal operation).

OSHA will look for the following:

  • Does the employer monitor for compliance with the work rule in the absence of an injury? (If supervisors only catch workers violating rules after injuries, OSHA will suspect a less than good faith discipline program.
  • Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury?

OSHA will also see if the company cites a rule that’s “too vague,” such as a requirement to “maintain situational awareness” or “work carefully.” These kinds of rules, OSHA says, are red flags because they may be “manipulated and used as a pretext for unlawful discrimination.”

2. Discipline for violating injury-reporting policies
Problem: A worker reports an injury. She’s then disciplined for violating company policy about the timing or manner of reporting.

“OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries,” Fairfax said. “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.”

Not all workers immediately know they are injured seriously enough to report. You can’t discipline if a worker only realizes later that they’ve suffered a reportable injury. Factors OSHA will consider in determining if the discipline is discriminatory:

  • Was the employee’s reporting mistake a major deviation from policy, or only a minor slip-up?
  • Was it deliberate or inadvertent?
  • Does the employer have a reasonable basis for the policy in the first place?
  • Was the punishment “unduly harsh” and a pretext either for discrimination or to discourage reporting?

Bottom line: Be prepared to defend your reporting policy and any sanctions against a worker. Documentation, and consistent discipline under the same reporting circumstances, will protect your company.

3. Incentive programs that focus on results, not behaviors
Problem: OSHA still doesn’t like safety incentive programs based on results.

“[S]ome employers establish programs that unintentionally or intentionally provide employees an incentive to not report injuries,” Fairfax explained.

Examples: Prizes for workers who were injury-free in the previous year, or team bonuses when no one is injured. In both cases, workers have a strong incentive not to report injuries. People want their individual prizes, and don’t want to be the person who loses the team bonus for everyone.

Instead: Reward the correct safety behaviors. Examples:

  • identifying hazards
  • participating in safety investiations of injuries, incidents and “near misses”
  • compliance with safety rules during spot inspections (e.g., wearing PPE), and
  • serving on safety committees.

Complete text of Fairfax’s memo is here: http://www.osha.gov/as/opa/whistleblowermemo.html

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