Most employers are aware of their legal requirement to provide a safe working environment where staff can perform duties—from reception to construction, research to hospitality—free from recognized health and safety hazards. However, some forget that the Occupational Safety and Health Act also prohibits employers from discriminating against their workers for reporting potentially dangerous situations, illnesses or injuries incurred on the job.
In 2014 the U.S. Department of Labor filed a lawsuit against The Ohio Bell Telephone Company—operating under the name AT&T—after the company suspended 13 workers without pay for reporting workplace injuries. While AT&T’s actions blatantly violated the whistleblower provisions of the OSH Act of 1970, discriminatory workplace injury policies are often much more subtle—so much so in fact that you may not even be aware that the Occupational Safety and Health Administration would deem your company’s practice unlawful.
Consider these very common yet potentially discriminatory policies that could discourage employee reporting of illnesses and injuries. If you recognize any from your own company practices, you may want to contact a workplace safety consultant or OSHA’s Office of Whistleblower Protection Programs for guidance on appropriate changes.
Disciplinary Action as a Result of Injury – If a workplace injury policy requires an employer to take disciplinary action against an employee who is injured on the job—regardless of the circumstances surrounding the injury—OSHA may consider it discriminatory. Such a policy aggressively discourages workers from reporting injuries or illnesses (always a protected action under the OSH Act) and is in conflict with the employer’s obligation to establish a method for such reporting.
Disciplinary Action for Violating Reporting Procedure – As an employer, you want your workers to follow established procedures for reporting illnesses and injuries. However, if you take disciplinary action against an employee who reports an injury because he or she did not follow the proper procedure when making the report, OSHA may consider your policy discriminatory—especially if your procedural rules are unreasonable, make compliance difficult, or are accompanied by unjustifiably harsh sanctions.
Disciplinary Action Post-Injury for Violation of Safety Rule – Establishing and communicating the consequences of violating workplace safety rules are important steps in the construction and management of any workplace safety program. However, if your company has a policy to discipline injured workers for their violation of safety rules, OSHA may find it discriminatory—especially if you have never imposed equivalent discipline against uninjured employees for rule violation.
Incentivizing Employees to Avoid Reporting Injuries – If you award bonuses to employees or enter them in drawings for prizes if they are accident-free, you may be unintentionally encouraging your workers to refrain from reporting injuries and illnesses sustained on the job. OSHA suggests you avoid this potentially discriminatory workplace policy by incentivizing your employees’ consistent participation in safety-related activities—such as workshops and safety training—rather than compensating them for an absence of injury.
