“Reporting a work injury or illness is a core employee right and retaliating against a worker for reporting an injury or illness is illegal discrimination.”
In March, 2012, OSHA issued a memorandum “Employer Safety Incentive and Disincentive Policies and Practices.” This memorandum outlines OSHA’s position regarding employer policies and practices that discourage workers from reporting job injuries and illnesses. It explains workers’ legal protections for reporting injuries and illnesses under Section 11(c) of the Occupational Safety and Health Act, other whistleblower programs (such as the Federal Railway Safety Act) and under OSHA’s Recordkeeping Rule (29 CFR 1904).
Which Employer Polices and Practices Could Be Illegal?
The memorandum gives examples of four types of employer policies and practices that might violate OSHA’s Section 11(c) and other whistleblower protections and could also result in violations of OSHA’s recordkeeping requirements:
- Injury Discipline:
Where employers have a policy or practice of disciplining workers who report injuries or illnesses, regardless of the circumstances surrounding the injury. This would violate Section 11(c) and might also violate an employer’s obligation to establish a way for employees to report injuries as required by OSHA’s record-keeping rule.
- Discipline for “Untimely” Reporting of Injuries or for Not Reporting Injuries in the Way Required by the Employer:
Where employers have rules requiring that all injuries be reported immediately, and workers are disciplined even in cases where they do not immediately realize that an injury or illness has occurred or that an injury or illness was serious enough to be reported; or where the employer’s reporting requirements are unreasonable, unduly burdensome or enforced with unjustifiably harsh penalties.
- Discipline for Violating a Safety Rule:
When employers use violating a safety rule as an excuse for disciplining workers who report job injuries or illnesses; or when employers have vague rules like a requirement that employees “maintain situational awareness” or “work carefully” and then only discipline workers for violating those rules when they report injuries or illnesses. Enforcing such rules more harshly against injured/ill employees than non-injured/ill employees may suggest that the rule is a pretext for discrimination against an injured/ill employee in violation of Section 11(c).
- Safety Incentive Programs:
Where employees are disqualified from rewards and prizes because injuries and illnesses are reported. Incentive programs that unintentionally or intentionally provide employees an incentive to not report injuries/illnesses can be a violation of Section 11(c).
In addition, the Agency’s memorandum states, “OSHA has also observed that the potential for unlawful discrimination under all of these policies may increase when management or supervisory bonuses are linked to lower reported injury rates.” OSHA highlights in the memorandum:
“If employees do not feel free to report injuries or illnesses, the employer’s 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 and illnesses without fear of retaliation is, therefore, crucial to protecting workers’ health and safety.”
If you have been injured on the job, let your steward know right away. If a manager, tells you that reporting it could lead to discipline, this is illegal! Let us know right away!