“You disciplined a worker for reporting an injury,” said Tammy, the compliance officer. “That’s a violation of our whistleblower protection laws, and I’m citing you.”
“We suspended Mike for a week because he failed to follow our safety procedures, not because he reported his injury,” replied George, the supervisor.
“What safety rules did your worker supposedly violate?” asked Tammy.
“We have strict rules mandating the use of safe lifting techniques,” said George. “Mike ignored those rules and that’s why he suffered a back injury while lifting a heavy load.”
“That’s a creative explanation for unlawful retaliation,” said Tammy. “It couldn’t have been a coincidence that Mike was suspended shortly after he reported his back injury.”
“You’re right,” said George. “It wasn’t a coincidence. Mike got hurt while violating our lifting rules, and we disciplined him right after he ran afoul of our safety requirements.”
George continued, “We followed our normal disciplinary procedures when we suspended Mike. Several managers reviewed the facts of the case, and they agreed discipline was justified.”
“You can’t defend an illegal action based on the random application of your own disciplinary rules,” said Tammy.
“You’re reading too much into this,” said George. “We were justified in suspending Mike. We’ll challenge your citation.”
Did the employer win?
Yes. The employer won. The OSHA Review Commission overturned the citation.
The commission decided that OSHA failed to prove that the man was disciplined for reporting an injury. Yes, he was suspended right after he told his boss about his injury. However, the suspension was also issued after the staffer violated the company’s safety rules, so OSHA could only speculate as to the actual reason the staffer was disciplined.
The commission also noted that the employer followed its own procedures for punishing crew members, which meant that several managers reviewed the case and concluded that a suspension was warranted.
What it means: Stick to disciplinary procedures
Keep in mind that it’s illegal to suspend or fire workers for reporting injures. However, that doesn’t mean you can’t take disciplinary action against staffers who refuse to adhere to safety rules.
Just make sure you can justify any disciplinary action taken against crew members after they report injuries. The company in this case was able to get the citation overturned partly because it followed its own disciplinary policies before suspending the worker, making it harder to prove that the suspension was motivated by retaliation for reporting an injury.
Based on Secretary of Labor v. U.S. Postal Service.
(From the July 13, 2020, issue of Safety Alert for Supervisors. To download the rest of the issue right now, please click here.)