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.


Safety is Not Just Physical

I’m convinced that safety professionals need to expand their view of safety from one focused predominantly on physical safety to one that includes a focus on how people are treated in the workplace.  The physical manifestations of safety are in many ways the signs and symptoms of not only how people are being treated but how they feel in the work environment.

Often discussions about safety in the workplace focus on topics such as the available safety equipment and the viability of safety training.  However, there tends to be little conversation about the emotional environment that workers.  As a leading indicator of the safety management system and a lagging indicator of the leadership culture of an organization, the ways that people are communicated with, instructed and corrected have a tremendous effect on how workers perceive their work environment.  Workers that are berated, yelled at and pummelled with insults are certainly not likely to do their best work, regardless of what their responsibility with the organization might be.  Conversely, workers who are well treated, cared for and supported will generally perform better and bring greater value to the organizations itself.  This is not a suggestion that the world of work is a utopia, however, it should also not be an apocalyptic hell where workers are in constant fear of either customers, supervisors, co-workers or subordinates.

An important characteristic that a safety professional should possess is the ability to be FOR safety and neutral on other topics.  A safety professional cannot be so for the organization that they are willing to put employees at risk for the purpose of production.  They should also not be so FOR the employee that they resist anything that will be disliked by employees even when it will clearly make the workplace safer. Safety professionals must guard against expression of strong feelings or opinions on every subject, all of the time, lest they create a perception that safety professionals

The office of a safety professional should be a place where people can go and report not only physical hazards but emotional ones as well.  Worker should know that they can go to safety for any reason and know that while the issue will be addressed, their confidentiality protection and potential for action should increase.  While the safety professional cannot and should not be viewed as a panacea,  the way a safety professional carry themselves will certainly have an impact on how supported or not workers feel by the safety office.

Safety vs. Production

It is kind of interesting to hear some folks twist themselves into pretzels explaining why they prioritized “getting things done” over the safety of those that they expect or have asked to do the work.  Too often a focus on timelines, bottom lines, and production quotas take precedence over the safety and health of people and the environment.

This short-sighted approach not only hurts the individual who sustains the injury it hurts everyone connected to them including the employer.  And if the employer is a public sector organization such as a government agency, the ultimate losers are the taxpayers who have established the government, to begin with.  No matter how proficient they may be, employees who are sidelined by injuries or illnesses can’t provide service to the public.  This is even more critical in situations where government entities have been cut keep expenditures low.  In cases where there are limited numbers of people available to do work, there is also a limited capacity to handle them not being available.

Safety and production are not mutually exclusive goals.  The focus should be on safety OR production, it should be on safety AND production.  To the extent that safety can be interwoven into the production process the better everyone involved from the workers to the customer will be.