The federal Occupational Safety and Health Act of 1970 (the "Act") was implemented to assure safe and healthful working conditions for the American workforce. The Occupational Safety and Health Administration ("OSHA") is tasked, in part, with enforcing the standards developed under the Act. OSHA has repeatedly recognized the importance of an employee’s right (and responsibility) to report unsafe or unhealthy working conditions to his or her employer, or, if necessary, directly to OSHA. OSHA views such reporting rights, which are protected by the whistleblower protections of section 11(c) of the Act, as key to ensuring the safety of an employer’s workforce, believing that employers may not learn of and correct dangerous conditions if the employee does not, or is not allowed to, speak up.

In a legitimate and well-intended effort to improve safety and health of employees, employers have been using safety incentive programs for years. Some such programs provide cash, prizes or other rewards, such as a company or department pizza party, if certain safety measures are met (e.g., one month with no safety violations). Although such programs are intended to promote safety-related work practices and behaviors, employers with such programs would be wise to review their program and to determine whether the program has a negative effect on an employee’s willingness to report known health or safety concerns, or worse, whether the program directly penalizes employees for making such reports.

A recent memorandum issued by OSHA focuses on such incentive or disincentive programs and outlines four generalized employer practices that it believes would encourage the underreporting of workplace injuries or illnesses and are contrary to section 11(c) of the Act:

1. If an employer has a policy of disciplining all employees who report a work-related injury or illness, regardless of fault, such policy is contrary to the employer’s obligations to establish ways for employees to report injuries and illnesses. This mandatory discipline policy will be viewed as a direct violation of section 11(c) by OSHA because no legitimate reasons exists for the disciplinary action apart from the injury reporting.

2. Employer discipline of an employee who reports an injury or illness because the employee violated an employer rule or policy specifying the manner or time for reporting injuries or illnesses will be closely scrutinized. While an employer may have legitimate reasons for establishing specific reporting procedures and timelines, OSHA believes that "such procedures must be reasonable and may not unduly burden the employee’s right and ability to report." Investigations in these cases will focus on: (a) whether the employee’s deviation from the procedure was minor or extensive, inadvertent or deliberate; (b) did the employee have a reasonable basis for his or her actions; (c) can the employer show a substantial interest in the rule and its enforcement; and (d) does the discipline imposed appear disproportionate to the established interest. If the employer’s reporting requirements appear unreasonable, unduly burdensome or enforced with unjustifiable harshness, additional action is warranted.

3. When an employer imposes discipline on an employee who has reported an injury because the injury resulted from the employee’s violation of a safety rule, OSHA will carefully investigate the situation. Despite "encourag[ing] employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring," OSHA believes that employers may use the rule violation as a pretext to discriminate against an employee who reports an injury. This is especially true if the rule is general or vague, such as "maintaining situational awareness" or "working carefully." The investigation will review compliance and enforcement of the rule in non-injury situations to see if it is applied with the same rigidity.

4. Employer established programs may, intentionally or unintentionally, provide employees with an incentive to not report injuries. Examples cited include where all employees who have not been injured are entered into a prize drawing or teams of employees without injuries during a set time period may be granted bonuses. The loss of this incentive may be great enough to dissuade workers from reporting injuries and, thus, violate section 11(c) and recordkeeping requirements. Instead, OSHA recommends that employers focus on incentives that promote participation in safety-related activities and suggests giving t-shirts to workers serving on safety and health committees, rewarding suggestions on strengthening safety and health, or throwing a party after completion of company-wide safety and health training.

Taken in the context of OSHA’s other recent actions, including the restructuring and elevation of its "Office of Whistleblower Protection Programs" to report directly to the Assistant Secretary of Labor for OSHA, it is readily apparent that employee reporting rights (i.e., whistleblower) will continue to be a major focus area for OSHA. Employers should place an emphasis on evaluating their own policies and practices to lessen risks associated with retaliation/whistleblower claims, particularly as it relates to safety incentive and disincentive policies and practices. If you have questions or would like further information, please contact one of the attorneys in our Employment, Labor, and Benefits Practice Group.

_{This content is made available for educational purposes only and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this content, you understand there is no attorney-client relationship between you and the publisher. The content should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.}