Whistle While You Work: OSHA Draft Policy Seeks to Prevent Retaliation for Employees Reporting Safety Concerns

On November 6, 2015, OSHA issued a draft policy entitled “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation,” for which it informally seeks public comment through January 19, 2016. The draft policy seeks to facilitate an environment in which employees can freely raise OSHA concerns without the fear of employer retaliation. This whistleblower protection policy specifically focuses on improving safety incentive programs that employers could use in a retaliatory manner against workers who raise such concerns.

In its endeavor to create a culture free from retaliation, OSHA drafted a paragraph with recommended steps for employers, including “[e]liminating all formal and informal workplace incentives that encourage or allow retaliation or discourage reporting. Examples of problematic incentives include rewarding employee work units with prizes for low injury rates or linking supervisory bonuses to lower reported injury rates.” While this notion is broad in scope, OSHA officials seek public comment tailored to the obstacles facing implementation of these practices.

The language contained in OSHA’s new draft policy paper coincides with a pending rule that directly confronts the same issues. The pending rule arose from a previously articulated concern over an employer’s potential misuse of certain safety incentive programs that could result in deflated injury or illness reporting, or any practice that might deter workers from reporting OSHA concerns even when injuries have occurred. OSHA described those aberrations as violative of whistleblower regulations and sought to prevent them with the pending rule and, now, through its draft policy.

OSHA officials believe the final policy will provide practical guidance on protecting whistleblower rights for all sectors through its guidelines for leadership commitment to an anti-retaliatory culture, retaliation response practices and anti-retaliation training. Ultimately, OSHA is striving to “protect the integrity of the injury and illness data,” by deeming it a violation for an employer to “discourage employee reporting in these ways,” it said.

The draft policy may be found by clicking here.


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