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New OSHA rules emphasize injury reporting, discourage retaliation

Jeff Schanbacher for Progressive Dairyman Published on 25 August 2017

In 2016, OSHA finalized rules it hopes will improve the tracking of workplace injuries and illnesses. Some of the regulations that accompanied this ruling have percolated through the system, and now dairy farmers have a number of changes coming their way.

The new rules have three provisions:

An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting. The new addition here is: Any procedure the employer uses is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. More on this later.

Employers must inform employees of their right to report work-related injuries and illnesses free of retaliation. Employers are required to inform employees they have the right to report work-related injuries free of retaliation by their employer. Posting the current OSHA workplace poster meets this requirement.

An employer may not retaliate against employees for reporting work-related injuries and illnesses. Retaliation against an employee can take many forms, including discharge, demotion, denying benefits and more. OSHA has substantial penalties and costly fines for employers who use these tactics. Also, many states have regulations that protect injured workers, including whistleblower laws.

So how does a dairy work with these rules? Appropriate use of discipline.

OSHA does not prohibit disciplining someone for breach of company policy or company safety regulations. For example, if an employee misuses a tool in the shop and cuts himself or herself, you cannot discipline the employee for reporting the injury.

However, you may discipline this employee, despite the injury, if you have specific safety training involving the tool or procedure the employee was using or wording in your handbook that informs employees they are not allowed to operate a tool until they have been certified to use it.

Similarly, you cannot discipline the employee for not reporting the injury. If your employee handbook or policy manual presently includes statements about disciplinary actions for not reporting injuries, you should consider removing them. (Always consult with your attorney before making any policy handbook changes.)

Let’s consider an example of how these new rules might apply in an actual situation.

Joe slips and falls, but he feels more embarrassed than hurt and he goes home at the end of his shift. The next day he wakes up and his knee is swollen and stiff. He comes to work and is visibly limping. A couple of hours into his shift, Joe’s supervisor sees him limping and asks him about it.

The employee says he fell yesterday at the back of the warehouse where there is some standing water. The supervisor sends him to the clinic to be checked, and the doctor tells him to take three days off before returning to work. When Joe returns to work, the supervisor, Frank, gives him a warning letter for not reporting an injury.

This course of action would be a violation of the new OSHA rules, and the employer could face a discrimination case or related fines.

Let’s consider an alternative action that would be OSHA-compliant.

When supervisor Frank hears about the injury, he sends Joe to be seen at a clinic. However, Frank immediately goes back to the area where Joe’s injury occurred, takes pictures and documents any eyewitness statements. When Joe returns to work, Frank gives him a warning letter – but this warning is for failure to report an unsafe work condition.

The distinction between the two examples is that when Joe failed to report the injury, he also failed to report an unsafe condition dangerous for other employees as well. In the second situation, the company had a policy in place reminding employees it is everyone’s responsibility to identify and report faulty equipment or unsafe conditions.

Joe had violated this policy; the discipline he received did not discriminate, nor did it deter future reporting. This action encourages prompt reporting of dangers in the future.

Note that, in both cases, the employee was presented with a warning notice and nothing more severe. Warnings are a documentation of a breach of policy or a corrective action given to an employee so the employer has proof a discussion took place to correct the problem and the employee knows what is expected of him or her if this situation occurs again.

All such actions should be documented. The most important piece in any disciplinary action is: You are consistent. Thus, if company policy is to report unsafe work conditions, not only should Joe be given a warning but any other employees who saw the incident or knew the unsafe condition existed but failed to report it should be given one as well.

Dairies should carefully consider their approach to promoting workplace safety. Legitimate workplace safety programs treat all employees equally, regardless of whether a violation of policy results in an employee reporting an illness or injury. Workplace safety programs are best created on a case-by-case basis.

You may want to consult with an attorney or HR consultant on this topic. In all cases, your company safety policy should be clear and avoid vague statements like “work carefully” or “maintain situational awareness.”

Finally, some workplace safety policies seek to promote safety and a reduction in the number of injuries through incentive programs. OSHA understands the positive motivations of this idea. However, these need to be carefully designed; they cannot discriminate or discourage injury reporting.

Incentive programs may not exclude or penalize employees who report injuries. Denying a benefit available to employees who are injury-free or a group that avoids injuries for an established amount of time (i.e., monthly or quarterly) would not be acceptable.

Peer pressure is also an unacceptable deterrent. You cannot infringe on an employee’s right to report an illness or injury even if you question the truthfulness of the report.

According to OSHA, acceptable incentive programs should include worker safety activities and rewards for passing safety training. For example, consider rewarding if an employee reports unsafe work conditions or equipment.

Recognize co-workers for doing something to protect or help others, such as an employee who helps another employee lift a heavy object. Zero violations of company safety rules are acceptable as long as everyone is eligible and rewards are given in the spirit of safety for all.

Rewards should not be so large as to tempt employees to avoid bringing safety issues or injuries to the attention of management. A $50 gift certificate may provide positive reinforcement just as a free 50-inch color TV would, but the TV may be perceived as an incentive that would cause an employee not to report an injury or unsafe condition if they thought they would lose the chance to win one.

Work with your HR department, safety coordinator or your attorney to review your handbook, policy manual and safety program. Make sure they are focused on supporting safety in the workplace and not on the disciplinary actions.

Do not turn an injury or illness into a long-running equal employment opportunity case or OSHA discrimination case that can cost you over $100,000 to defend. Create a safe environment where employees feel comfortable reporting problems before they happen.  end mark

HR Mobile Services has offices in California and Arizona. The company specializing in loss prevention, safety training and human resource compliance for small businesses. They have dairy clients in 15 states.

Jeff Schanbacher is the director of operations with HR Mobile Services. Email Jeff Schanbacher.

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Download the current OSHA workplace poster here: OSHA - Job safety and health.

For more information on the topic of reporting workplace injuries, visit United States Department of Labor - Occupational Safety and Health Administration.

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