In a new memo sent to Occupational Safety and Health Administration regional administrators and whistleblower program managers, OSHA Deputy Assistant Secretary Richard E. Fairfax directs field compliance officers and whistleblower investigators to keep an eye out for workplace policies and practices – including employer safety initiatives – that could discourage employees from reporting injuries. According to the memo, many types of employer policies, particularly those that link management or supervisory bonuses to lower reported injury rates, could potentially lead to unlawful discrimination under section 11(c) of the Occupational Safety and Health (OSH) Act, as well as violate OSHA's recordkeeping regulations.

The memo explains “while OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.” To this end, the document details four of what the agency considers the most common potentially discriminatory safety policies:

• Taking disciplinary action against employees who are injured on the job regardless of the circumstances surrounding the injury. Because reporting an injury is 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 the [Federal Railroad Safety Act (FRSA)]. . . . In addition, such a policy is inconsistent with the employer's obligation to establish a way for employees to report injuries under 29 CFR 1904.35(b), and where it is encountered, a referral for a recordkeeping investigation should be made.”
• Taking disciplinary action against an employee who reports an injury or illness, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. According to the memo, “such cases deserve careful scrutiny.” The memo acknowledges that employers “have a legitimate interest in establishing procedures for receiving and responding to reports of injuries,” but cautions that “to be consistent with the statute . . . such procedures must be reasonable and may not unduly burden the employee's right and ability to report.” The memo explains that an employer rule or procedure cannot penalize employees who may not immediately realize that they are injured or that their injuries are serious enough to report. The guidance states that in investigating these cases, field examiners may consider the following factors: “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.”
• Taking disciplinary action against an employee who reports an injury because the injury resulted from violation of a safety rule. According to the memo, while the agency “encourages employers to maintain and enforce legitimate workplace safety rules,” it cautions against using the work rule as a pretext for discrimination. Therefore, in such a case “a careful investigation is needed.” Factors an investigator should examine include whether the work rule is vague and how consistently the employer monitors and enforces the rule.
• Maintaining policies that intentionally or unintentionally provide employees with an incentive not to report an injury. By way of example the memo describes a scenario in which an employer makes employees eligible to receive a prize or bonus if there have been no injuries the previous year. According to OSHA, such a program – though well-intentioned – might discourage employees from reporting injuries, and could potentially discriminate against those who do report injuries, particularly if the employee or work group reporting the injury would be disqualified from receiving the incentive. This type of program could also result in an employer’s failure to record injuries in violation of OSHA’s recordkeeping and reporting requirements. The agency claims that there are “better ways to encourage safe work practices,” as outlined in OSHA’s Revised Policy Memo #5 – Further Improvements to VPP. 

During a recent Department of Labor budget hearing, Labor Secretary Hilda Solis said she would review this memo, but assured House committee members that OSHA does not intend to issue citations for employer safety programs in general. Regardless of the Labor Secretary’s assurance that OSHA will not penalize employers for maintaining safety policies, the new memo is a reminder that workplace policies and incentive programs must be carefully reviewed and consistently enforced.

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