OSHA Scrutinizes Employer Accident Reporting and Safety Incentive Policies

Move poses compliance challenges for employers

By Richard Voigt

Recently, the Occupational Safety and Health Administration (OSHA) issued a memorandum to its enforcement personnel directing them to scrutinize employers’ on-the-job injury reporting policies and safety incentive programs.

OSHA has always regarded the reporting of a work-related injury by an employee as “protected activity.” Therefore, it comes as no surprise that the agency considers employer discipline of an employee for reporting such an injury to be illegal discrimination under the Occupational Safety and Health (OSH) Act and a potential contributor to a failure to record injuries.

However, OSHA’s extension of this basic policy, as articulated in the recent memorandum, may come as a surprise to many employers.

A Closer Look

OSHA field personnel are directed to scrutinize employer policies that call for:

• Discipline of an employee who does not report a work-related injury in a timely manner. OSHA asserts that such a policy may violate the OSH Act’s discrimination provisions in situations where (1) a worker does not realize immediately that his or her injury is serious enough to report, (2) the failure to report the injury is “inadvertent,” (3) the delay in reporting was “minor,” or (4) the employer cannot show “a substantial interest” in the policy and its enforcement and that the discipline is proportionate to the asserted interest.
• Discipline based on the fact that a reported injury resulted from the employee’s violation of a safety rule. OSHA’s concern here would appear to be inconsistent with its expectations that employers will enforce workplace safety rules and that a failure to do so could subject the employer to OSHA citations. Nevertheless, the agency asserts that the discipline in an injury case could be a pretext for discrimination against the employee if, for example, violations of safety policies do not result in discipline in the situations in which there is no injury or if the safety rule being enforced is so vague (e.g., “work carefully”) that it may be manipulated for purposes of illegal discrimination.
• Rewarding employees with bonuses or prizes if no one has been injured over a defined period of time. While OSHA acknowledges that such programs might be well-intentioned efforts to encourage workers to use safe practices, the agency is concerned that the programs could create disincentives to report injuries. This concern would appear to be inconsistent with OSHA’s general preference that supervisors be evaluated on the basis of the safety record in the departments that they supervise. OSHA asserts that there are better ways of encouraging safe work practices, such as providing incentives for workers to identify hazards, to participate in investigations of accidents or “near misses,” to suggest ways to strengthen safety and health policies, or to complete safety and health training.

What Should You Do?

The OSHA field directive suggests the need for employers to carefully articulate policies relating to the reporting of work-related injuries. For example:

• If an employer disciplines an employee for failing to report an injury in a timely manner, the employer should confirm that there is sufficient evidence to support the conclusion that the employee’s failure was not inadvertent and that the failure produced real, practical consequences for the employer.
• If an employer disciplines an employee for violating a safety rule that resulted in a workplace injury, the employer should take comparable disciplinary action to address similar violations that did not result in a workplace injury.
• If an employer wants to use safety incentive bonuses or prizes, the program would be easier to defend if it rewards employee compliance with safety rules: for example, periodic inspections by management reveal that employees are in compliance with requirements concerning personal protective equipment (PPE), machine guarding, and housekeeping: as opposed to rewarding an injury-free work history.

Richard Voigt is a partner in the law firm of McCarter & English LLP in Hartford. He can be reached at rvoigt@mccarter.com.