Pub. 1 Issue 2

19 SUMMER 2013 Fairfax, and was sent to OSHA administra- tors across the U.S. The memo specifically references Section 11(c) of OSHA prohibiting employers from discriminating against an em- ployee that reports an injury or illness caused at work (http://www.osha.gov/as/opa/whistle- blowermemo.html.) Any retaliation against an employee, or dis- ciplining an employee, exercising their right to report injury is considered illegal and OSHA wishes to enforce penalties under other whistle- blower statutes. We note that there was major restructuring of the “Office of Whistleblower Protection” in 2012 that lends more teeth to the enforcement mechanism. Fairfax states that reporting injuries can lead to prompt treatment for injured employees and can also help employ- ers to correct dangerous conditions thereby protecting all employees at their workplace. Also in question is the practice in which em- ployers institute a disciplinary action against an employee involved in an injury. The applica- tion of OSHA rules would vary case by case; however, here are some issues that the Fairfax memo outlines as follows: 1. Safety Rules: OSHA encourages employers to maintain and enforce legitimate safety rules. However, an employer cannot use the violation of the safety rule as a pretext to discriminate against an employee report- ing an injury. An investigation is required. Employers who have 1) clear cut rules com- municated to employees that are 2) enforced in the absence of the injury and 3) employees violating those rules in the absence of an in- jury receive a reprimand, are more likely to prevail in situations where disciplinary pro- ceedings are instituted against an employee who is injured as a result of that safety rule violation. Vague rules such as “work care- fully” or “maintain situational awareness” will not meet muster with OSHA. Lastly, rules that require employees to report inju- ries immediately cannot be used to penalize employees when employees do not realize that their injuries are serious enough to report immediately, or in some cases may not even realize that medical intervention is needed, as some injuries surface after a period of time. 2. Incentive Programs: Fairfax says that OSHA recognizes that employers use safety as a key management metric. However, any incentive program that encourages under reporting or discrimination against work- ers must be discontinued. Fairfax notes that raff les held by employers in which non-injured parties participate is well- intentioned but better forms of programs may be available in which employees are provided with incentives to identify near misses or identifying hazards. We note that California Labor Code 3203(a)(2) specifies recognition of employees who follow safe and healthful work practices. See www.dir. ca.gov/title8/3203.html. AND OSHA GETS INTO ACTION Earlier this month, OSHA required Norfolk SouthernCorp to pay $1.1million for firing three  Preventing Accidents — continued on page 20 Any retaliation against an employee, or disciplining an employee, exercising their right to report injury is considered illegal and OSHA wishes to enforce penalties under other whistleblower statutes.  Preventing Accidents — continued from page 16