OSHA Memo Discusses Employer Discrimination and Retaliation


The Occupational Safety and Health Administration issued a memorandum this spring on employer safety incentive policies and practices and whistleblower claims that has employers buzzing. OSHA has been increasingly vocal about its dislike of employer safety incentives insofar as they discourage reporting of injuries and illnesses. Now, OSHA has outlined several workplace policies and practices that could constitute unlawful discrimination and a violation of section 11(c) and other whistleblower protection statutes. Among these are programs such as entering employees who have not been injured in the previous year in a drawing to win a prize, or awarding a team of employees a bonus if no one from the team is injured over some period of time. OSHA instead suggests that employers offer positive incentives to employees for suggesting ways to strengthen safety and health and throw a recognition party after completion of organization-wide safety and health training.

The memorandum also cautions against employers taking unreasonable disciplinary action against employees for late reporting of an injury or violation of a safety rule, and for taking disciplinary action against employees who are injured on the job regardless of the circumstances surrounding the injury.  

Employers should evaluate their health and safety policies and practices to ensure that they are not engaging in conduct that could be considered discriminatory or retaliatory. Any discipline employers engage in should be objectively reasonable and consistent with the employer’s policies and practices. Reporting an injury or safety concern is a protected activity and disciplining or terminating employees following such activities should be done with caution after consulting legal counsel.

OSHA’s memorandum can be accessed by clicking here.