by Renee Mielnicki, Esquire
For many of you, workplace safety is a huge part of your organization. A lot of our clients operate very labor intensive companies such as construction, manufacturing and oil and gas. The physical requirements involved in these types of industries are demanding which makes a workplace safety program very important. Safety is regulated by a lot of different laws, but one of the most important ones is the Occupational Safety and Health Act (the “OSH” Act”). Please note that the OSH Act doesn’t apply to all employers. For example, it doesn’t apply to government employers, but it does apply to most private employers. For more information about the OSH Act, and to see who is covered, click here.
The OSH Act does a lot of things including setting forth safety standards for employers covered by the Act. It allows employees to make complaints about unsafe working conditions to OSHA, the federal agency responsible for enforcement of the OSH Act. For that reason, it prohibits employers from disciplining or discharging employees in retaliation for exercising their rights under the OSH Act. Examples of some employee rights under the OSH Act are the right to make a complaint to the Occupational Safety and Health Administration (OSHA), testifying against an employer regarding an unsafe workplace and the right to report workplace injuries. Lastly, the OSH Act prohibits employers from discriminating against employees for exercising their rights under the OSH Act.
A lot of our clients are faced with unique challenges as far as how and when to discipline an employee who has broken a safety rule. Consider these examples:
- A welder fails to wear required protective eye wear and as result sustains and reports to his employer an eye injury.
- A construction worker fails to wear a required helmet and is injured by an object that falls from above. His injury could have been prevented had he been wearing the required helmet. The construction worker reports this injury to his employer.
So what can these two employers do about the violation of the safety rules involved? OSHA has published memos and guidance relating to these types of situations. In a nutshell, OSHA seems to recognize the need of employers to have and enforce legitimate workplace safety policies to protect its workers from getting injured on the job. However, discipline relating to breaking those rules has to be delicately balanced with the rights that employees have to report injuries to their employer. Any form of discipline for violating a safety rule that follows an employee reporting an injury could be seen as retaliation or discrimination under the OSH Act. Before imposing discipline on an employee for violating a safety rule following a workplace injury, here are some things to consider.
- Does the employer have a clear, unambiguous safety policy that is written and provided to the employees concerning the rule that was violated?
- Was the employee provided with training relating to the safety rule that was broken?
- Is the discipline the employer wishes to impose proportional to the infraction committed by the employee? In other words, does the punishment fit the crime?
- Has the safety rule that was violated been consistently applied and enforced by the employer in the past, particularly with regard to employees that violated the rule and were not injured as result?
The goal here is for the employer to be able to show that the discipline it wishes to impose is solely related to breaking the safety rule and has nothing to do with reporting the injury. If the employer is able to do this, it will be in a decent position to defend a claim that it has violated the OSH Act by punishing the employee after reporting a workplace injury. Of course, like any other form of discipline, the employer will need good documentation of the discipline and must place that documentation in the employee’s personnel file.
Another issue for consideration in such a situation is as follows. Most employees who sustain workplace injuries make a claim for workers’ compensation. Employees disciplined or terminated after making a workers’ compensation claim can also make a legal argument that is similar to the ones that they can make under the OSH Act. In a nutshell, employees have the right to file a workers’ compensation claim for a workplace injury. Discipline or termination following such a claim can give rise to what is known as a violation of public policy claim (meaning that it is a violation of public policy to punish an employee for exercising their right to make a workers’ compensation claim after a workplace injury). Similar precautions and considerations as highlighted under the OSH Act discussion need to be considered relating to this type of claim.
Seems like a lot to take in, I know. But, guess what?
East Coast Risk Management is going to be hosting a FREE WEBINAR on this very topic on May 8th at 11:00 a.m. EST.
ECRM’s William Paletski, an experienced safety professional, and James Spencer, a senior HR professional with ECRM, will present the webinar together. Mr. Paletski will discuss the basics of the OSH Act and a safety program. Mr. Spencer will then discuss, in more detail, the implications of disciplining an employee who has broken a safety rule and been injured. Watch your email for registration details which will be coming out soon. We hope you can join us.
Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.