Last month, federal OSHA sent a guidance memorandum to the agency's compliance officers instructing them to be aware of issues raised by employer policies relating to safe workplace practices. This guidance relates to previous OSHA concerns that employers are not reporting actual employee injury and illness rates. OSHA believes that employee policies contribute to this underreporting.

In terms of disciplinary policies, OSHA stated that workplace rules that punish employees who are injured on the job encourage them not to report such injuries. Even seemingly neutral policies such as those requiring employees to work carefully could be implemented in a manner that discriminates against employees who report workplace injuries. While such policies will not automatically be deemed discriminatory, compliance officers are directed to determine whether they are being manipulated for the purpose of punishing employees who report injuries.

The safety incentive direction goes even further. OSHA believes that employer safe workplace incentive programs that are based on the absence of injuries incentivize employees not to report injuries through fear of losing the bonus or other incentive. Peer pressure within the organization can discourage injury reporting if some group benefit or reward would be lost as a result. The greater the incentive, the higher the likelihood that it will interfere with injury and illness reporting.

OSHA concludes that in appropriate circumstances, employers should be cited for willful violations if their disciplinary or incentive programs are deemed to discriminate against employees who report injuries. This is a novel and very aggressive reading of the OSH Act, and is certain to face legal challenge from employers cited for willful violations based on neutral workplace safety policies and programs.