Sorry, You Can’t Discriminate for Safety Purposes

The on-going discussions about sexual harassment in the workplace have renewed conversations about the importance of a non-discriminatory culture in the workplace.  These conversations are not new especially in the lifetime of the vast majority of today’s workforce.  According to the U. S. Bureau of Labor Statistics, 94% of the labor force is 64 years old or younger.  This means that nearly all of the current workforce of the country has never worked in a country where discrimination in the workplace was legal.  Workplace discrimination with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin is clearly a violation of the Civil Rights Act of 1964.

The passage of the Civil Rights Act, along with subsequent federal and state protections have slowly made many workplaces more and more diverse places for not only employees but customers as well.  As a practical matter, discrimination in the workplace is generally addressed as a human resources issue given the nature of the protections in the Civil Rights Act.  However, as a result of requirements recently finalized by OSHA, safety professionals may need to improve their understanding of the concept of discrimination in the light of protections being extended to anyone reporting an injury or work-related illness.

OSHA’s injury/illness reporting rules under 29 CFR 1904.35(b)(1)(iv), state “an employer may not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness”.  The underlying premise of the regulation requires the employer to “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.  A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness”.  The view that “we are the bosses and will tell the workers what to do and how to do it” can get an organization in a bit of trouble as it relates to reporting injuries and illnesses.

This regulation has created a number of challenges for employers may not have considered.  For example, incentive programs that provide a benefit to one employee who is not injured, but does not provide the same benefit to an injured employee based solely on the fact that the employee was injured could be a violation.  It is also important to ensure that legacy policies and procedures regarding injury/illness reporting don’t create an inadvertent potential violation by treating similarly situated employees differently based on their injury or illness.   Policies that require drug testing for no other reason than the fact that the employee was injured or became ill on the job could be a violation.

In a perfect world, there would not be a need for a process to report injuries and illnesses because they would not occur.  But reality suggests that this goal is more challenging in some organizational cultures than it is in others.  The role of a safety professional is to help organizations and individuals ensure that injuries and illnesses don’t occur in the workplace at all.  Sometimes this zeal to see the organization or individuals be safer can be manifest in ways that could now be considered discriminatory by OSHA.  Discrimination is not an effective tool for creating a culture of safety and should be replaced with clear policies, procedures, and practices that are developed with employee involvement, fairly and equally appplied.


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