Enforcing workplace safety policies just became more complicated and possibly illegal in light of a March 12, 2012 OSHA memorandum. In that memo, OSHA identified several common workplace safety policies it considers discriminatory and therefore unlawful. Those policies include:
- Disciplining an employee for violating a company safety policy. Many workplace accidents result from reckless and irresponsible behavior, and disciplining a known offender for repeated safety violations is a “stick” workplaces frequently use to punish such offenders. OSHA considers such policies potentially discriminatory and impermissible. The key, OSHA explains in its memorandum, is consistent application of the safety policy even in the absence of an injury. That is, OSHA explains, does the company monitor compliance with the safety policy even where no injury occurs, and, if so, is discipline imposed against such employees absent an injury? If so, disciplinary action against the offending employee appears to pass muster with OSHA. If not, and the safety policy is directed solely against employees who are injured as a result of a violation of a company safety policy, the policy may violate federal law, OSHA warns.
- Similarly, policies that punish an employee’s failure to timely report an injury, or punish the employee’s failure to complete the necessary paperwork for documenting an injury, may also run afoul of OSHA regulations. OSHA’s memorandum explicitly states that companies may not discipline an employee who does not immediately realize the injury is significant enough to report it. Again, such policies are relatively common, and companies often implement such rules in response to employees who deliberately fail to report an injury in order to avoid a post-accident drug test. According to OSHA, these policies may also be illegal.
- OSHA reinforced its dislike of incentive programs that indirectly encourage employees not to report injuries, or cause fellow co-workers to discourage an injured employee from reporting an injury in order to maintain a perfect record of injury-free days. Such incentives often take the form of prizes or bonuses to employees for maintaining a given number of injury-free days. In such companies, posters on the plant floor that proudly publicize the current count of injury-free days serve as a daily reminder of the company’s success at reducing workplace injuries. Again, because these efforts–while well-intentioned–may discourage the reporting of such injuries, OSHA has historically disapproved of this practice. Instead, OSHA suggests, companies should offer rewards for suggesting ways to strengthen safety practices, or have a “recognition party” following the completion of safety training (yes, that is actually in the memorandum).
Companies which have any or all of the above policies may find OSHA’s recent pronouncements very disconcerting. It is precisely because a select few aberrant employees simply cannot seem to follow simple safety rules that many companies feel compelled to implement such zero-tolerance policies. Nevertheless, OSHA considers such policies either directly discriminatory or, at a minimum, potentially discriminatory, and therefore, in many cases, unlawful. Consulting with counsel is one way to ensure existing safety policies comply with OSHA’s regulations and may also help to avoid an OSHA investigation based on such potentially discriminatory policies.
Steven P. Dlott is a Certified Specialist in Workers’ Compensation Law and heads the Workers’ Compensation Department at Meyers, Roman, Friedberg & Lewis. Steve is also a member of the Labor and Employment practice group which has extensive experience in defending employers in workplace investigations including OSHA inspections, informal conferences, consultation on OSHA laws and regulations, and litigating matters before the Occupational Safety & Health Review Commission. Steve can be contacted at (216) 831-0042 or firstname.lastname@example.org
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