Understanding the Regulatory Background
Under Section 11(c) of the OSH Act, employers are prohibited from retaliating against a worker who exercises their right to report a workplace injury or illness. Disciplining an employee who injures themselves while violating a safety rule could be viewed as a retaliatory act under this provision. This is where the employer’s dilemma begins.
However, the OSH Act also goes on to clarify that proscriptions of 11(c) apply when the adverse action, in this case discipline, occurs because the employee has engaged in protected activities, i.e. reporting a workplace injury (29 CFR 1977.6(a)). The adverse action must be made on “nondiscriminatory grounds.” To put it simply, employers must be able to show that the decision to discipline was unrelated to the fact that the employee got injured and was instead based on the employee’s violation of the safety rule.
Questions to Consider When Imposing Discipline
To help make this distinction, OSHA will examine whether and how the employer enforces the safety rule in question in situations that do not involve an employee injury. Typically, OSHA will consider these three questions:
- Does the employer monitor for compliance with the work rule in the absence of an injury?
Compliance with safety rules, policies, and procedures should be a day-to-day responsibility and hard-baked into a business’ operations.
- Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury?
OSHA is less likely to view disciplining of an injured worker as retaliation if every employee is disciplined when they violate a safety rule. Discipline should also be proportionate to the nature of the safety rule violated.
- Is the cited safety rule clear and specific enough so as to not be too vague?
For instance, a safety rule that tells employees to “work carefully” will bring more scrutiny from OSHA than a rule that requires workers to wear personal protective equipment every time they enter a jobsite.
Enforcement is a key component of an effective safety program. To that end, employers should not let a possible 11(c) whistleblower claim discourage them from disciplining an employee who violates a safety rule—injured or not. However, they must be able to back up the decision in response to the questions listed above.
How ALTRES Helps Manage Compliance
Keeping up with the ever-changing OSHA laws and regulations is a full-time job in and of itself. When you need help managing compliance, the Risk and Safety Management team at ALTRES has got your back. Our team of safety experts is dedicated exclusively to helping businesses create safer work environments by identifying potential violations and training staff to reduce accidents. To find out more about the wide range of consultation services we offer, contact us today.