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March 24, 2012

A new guidance memo from the deputy director of the Labor Department’s Occupational Safety & Health Administration (OSHA) calls for increased attention by agency compliance officers and investigators to whether disciplinary and safety programs violate safety regulations.

The memo from Deputy Assistant Secretary of Labor for Occupational Safety and Health Richard Fairfax, dated March 12, focused on workers who face retaliation for reporting on-the-job injuries or illnesses and safety incentive programs that discriminate against workers who notify employers about injuries and illnesses.

“Reporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination under section 11(c)” of the Occupational Safety and Health Act, Fairfax told the agency’s regional
administrators and whistleblower program managers.

Later in the memo, Fairfax addressed safety incentive programs. “If the incentive is great enough that its loss dissuades reasonable workers from reporting injuries,” the memo said, the employer is violating rule 29 CFR 1904, and a referral for a recordkeeping
investigation should be made.

OSHA already has told employers in the Voluntary Protection Program that before their participation will be renewed, their safety incentive programs need to be reviewed to determine whether they discourage reporting. 03.24.2012

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