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OSHA Policy Banning Programs that Discourage Reporting of Injuries

New OSHA Policy Bans Employer Practices that Discourage Injury and Illness Reporting

Reporting work-related injuries and illnesses is “a core employee right,” the Occupational Safety and Health Administration (OSHA) has pointed out, “and retaliating against a worker for reporting an injury or illness is illegal discrimination.”

In a March 12, 2012 policy memo, OSHA noted, “If employees do not feel free to report injuries or illnesses, the employer’s entire workforce is put at risk.” The memo continues, “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 are therefore crucial to protecting worker safety and health.”

Which Employer Policies or Practices Could Be Illegal?

The memo gives examples of four types of employer policies or practices that could violate OSHA Section 11(c) and other whistleblower protections and could result in violations of the OSHA recordkeeping requirements. In other words, OSHA could cite and fine an employer for having one of these policies or practices in place at a jobsite without waiting for an employee to actually face retaliation.

  • Injury discipline: Taking disciplinary action regardless of the circumstances of the injury;
  • Discipline for “untimely” reporting or not reporting injuries in a way required by the employer: Punishing an employee for violating an employer rule about the time or manner for reporting injuries and illnesses. Employees may be unclear about what and when to report injuries, or the employer’s reporting requirements may be unreasonable, unduly burdensome, or enforced with unjustifiably harsh penalties.
  • Discipline for violating a safety rule: Situations in which employers use the violation of a safety rule as an excuse to discipline workers who report injuries and illnesses, or when employers have vague rules like a requirement to “maintain situational awareness” or “work carefully,” and then only discipline those workers who report injuries.
  • Safety incentive programs that have the effect of discouraging reporting injuries: For example, offering rewards or prizes only to employees who were not injured in the previous year.

OSHA also said that the practice of linking management and supervisor bonuses to lower accident reporting could be potentially discriminatory. “Such policies could discourage reporting of injuries and could be considered unlawful discrimination,” the memo stated.

State-run OSHA programs should implement a similar policy. OSHA 11(c) also protects the right of workers to report hazards without fear of retaliation; California and other states that require employers to have “injury and illness prevention plans” may have additional protections.

To see the memo in its entirety, visit http://www.osha.gov/as/opa/whistleblowermemo.html.

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