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Consistently enforcing safety policies is the key to firing unsafe employees. Employers can’t fire an employee for getting injured, but they can discipline employees for violating documented safety rules or policies.
A common problem is that employers (and especially supervisors) don’t consistently follow the company’s disciplinary process for safety violations. Then, when someone gets injured, they want to impose discipline or termination. This can create the impression that the employee was disciplined “because of the injury” or “because of the workers’ compensation claim.”
The OSHA regulation at 1904.35 says that employers can’t discharge or discriminate against employees for reporting a work-related injury or illness. From a workers’ comp standpoint, imposing discipline can create the impression of retaliation for filing a claim (which is a worker’s right).
To illustrate, suppose an employee frequently removes his hard hat. The supervisor is inconsistent about addressing this and never documents any reminders given. Eventually, the employee gets a head injury that would have been prevented by the hard hat. The supervisor wants to fire the worker for the repeated safety violation.
If the terminated employee files an OSHA whistleblower claim or a workers’ comp retaliation claim, he’ll likely say that he was disciplined for reporting the injury or filing the claim. The company will have a chance to refute the claim, but this can be challenging when there’s little or no documentation of a recurring problem.
For related information, see Preventing Retaliation: OSHA's Whistleblower Protection Program.
If the company consistently enforces its rules (with documentation), then a termination should be easier to justify. An investigator might ask questions like:
If the company can’t show that it consistently enforces safety rules (regardless of injuries) then firing an employee who got injured can look like unlawful retaliation.
To use the hard hat example again, suppose the supervisor issued a verbal warning on June 14 and documented (for the supervisor’s own records) that she issued a verbal warning. On August 24, the supervisor issued a written warning to the same employee about not wearing a hard hat. Finally, on October 10, the employee got injured while not wearing a hard hat. If the policy says that a third violation results in termination, the employee can be fired, regardless of the injury. If the employee files a retaliation claim, the termination should be more defensible.
Now, a company policy might not stipulate termination after the third warning. Maybe that’s the fourth step after a verbal warning, written warning, and suspension. Also, safety disciplinary policies sometimes have time limits, like all warnings must occur within a rolling 24-month period, so supervisors aren’t looking back many years for previous warnings.
For potentially life-threatening violations (like working at heights without fall protection) a policy might start with a written warning or suspension, then termination on the second violation. Employers can choose to apply different standards based on the seriousness of the violation. But once established, supervisors must enforce the policy consistently and document all warnings.
Key to remember: It’s not against the law to fire an employee who got injured if employers consistently follow their enforcement policies. However, employers cannot fire an employee “because of” the injury or for reporting an injury.
Not concerned about the National Oceanic and Atmospheric Administration’s (NOAA) reported 2-degree Fahrenheit global temperature increase since 1850? OSHA is! And with summer on our heels, you may want to refresh your heat stress program.
Temperature extremes became a laser focus for OSHA when the Bureau of Labor Statistics (BLS) reported an annual average of 35 fatalities and 2,700 days-away from work cases between 2015 and 2019. Learn how you can keep out of hot water with the ABCs of OSHA’s National Emphasis Program (NEP) – Outdoor and Indoor Heat-Related Hazards.
When I first transitioned from driving into fleet safety, a wise safety manager told me, “If we can get our lights, brakes, and tire violations under control, we’d eliminate half of our violations.” Years down the road, that’s still great advice.
Here are some methods carriers can use to get such violations under control.
If you have compliance questions, Tom Bray and our team of Compliance Experts are accessible through Compliance Network’s Expert Help tool.
Roadside inspectors will begin using revised North American Standard Out-of-Service Criteria (OOSC) on April 1, 2024.
The updated OOSC removed a few existing violations that previously placed a driver or vehicle out of service and added a handful of new violations that do.
Other materials included in the OOSC were also updated, such as the inspection procedures, inspection bulletins, operational policies, and pictures.
The Commercial Vehicle Safety Alliance (CVSA) annually reviews and updates the criteria for an April implementation.
The Compliance Institute has several resources to aid in communicating and training employees of the importance of roadside inspections, including the recent OOSC changes:
If you have a question on the OOSC or any other regulatory topic, we encourage you to reach out to our compliance experts using Expert Help. Our team of experts is always happy to assist.
Most employers have identified workplace hazards upon reviewing injury records, but only half had tried informing medical providers about OSHA’s recordkeeping rules to reduce recordable cases.
During two recent presentations on OSHA injury recordkeeping, we asked attendees if they’d ever identified workplace hazards by reviewing injury records. We also asked if they’ve worked with a medical provider on understanding OSHA’s recording criteria, particularly the list of first aid treatments.
Reviewing the OSHA 300 Log is commonly suggested as a way to identify recurring workplace hazards. If a particular type of injury happens frequently, employers should be able to take steps to prevent future incidents. Therefore, our first question was “Have you identified workplace hazards by reviewing injury records?”
Between two events hosted on January 11 and January 16 of 2024, a total of 359 attendees responded, with 80 percent saying “Yes,” they have identified recurring hazards that they could address. Only 8 percent answered “No,” and another 12 percent had never checked.
We provided the “never checked” option because smaller employers might not have much of a data set. If a facility experiences only a handful of injuries per year (or zero injuries), the data might not show any recurring hazards.
Employers identified a variety of recurring hazards, but some of the most commonly mentioned included:
The two presentations also discussed medical recommendations that make a work-related injury recordable. Any treatment beyond first aid counts as medical treatment, including prescription-strength medications. Sometimes a doctor will recommend a prescription or antibiotic as a precaution, even if an over-the-counter medication might have been sufficient. Regardless of whether the employee fills the prescription, that recommendation makes the case recordable on the OSHA 300 Log. Our second question therefore asked, “Have you worked with a clinic to minimize medical recommendations?”
Nearly half of the 383 respondents (49 percent) answered “No,” but 44 percent said “Yes,” they have worked with a medical provider to explain how recommended treatments affect OSHA recordables. The remaining 7 percent had on-site medical facilities, which really helps with ensuring that only necessary treatment is provided.
Obviously, employers want injured workers to get whatever treatment they require. However, if a non-prescription drug would suffice, employers may ask that a lesser treatment be given when possible. Of course, employers should be clear that the ultimate determination is left to the medical professional.
In some states, injured workers may choose which doctor to visit, including their personal physician. This increases the challenges of communicating with medical professionals on the treatments offered. Other states allow employers to provide a list of medical providers for workers’ compensation claims, which helps improve communication.
For related information on medical treatment, see our article Can I get a second opinion? I want to delete an OSHA recordable.
Keep in mind that OSHA does allow getting a second opinion on whether recommended treatments, restrictions, or days away were necessary. If the second opinion is more authoritative, the employer might remove the case from the 300 Log. The employer must obtain the second opinion in a relatively short time frame. Also, the employer cannot remove the incident from the 300 Log if the employee already had medical treatment, worked with restrictions, or missed days of work.
Key to remember: Reviewing injury logs can help identify hazards that could be addressed, reducing the risk of future incidents.
Most people would be thrilled to land in first place on a top 10 list, but OSHA’s top 10 list of violations is not one you want to be a part of, no matter what place you come in. During the 2023 National Safety Council (NSC) Safety Congress & Expo, it was announced that fall protection – general requirements (1926.501) once again topped the list of OSHA violations. For the past 13 years, this has been OSHA’s most cited standard. In fiscal year (FY) 2023, there were 7,271 recorded violations, up from 5,250 in FY2022.
While employers continue to face challenges with OSHA’s Fall Protection Standard, they still have a duty to protect workers from fall hazards. Among the regulation’s requirements:
OSHA defines a fall hazard as “anything at your worksite that could cause you to lose your balance or lose bodily support and result in a fall.” Any walking/working surface can be a hazard, as well as working at a height. For these reasons, employers must provide their workers with fall protection.
Falls are one of the most common causes of workplace injury and death, so employers must identify potential fall hazards to help prevent worker injury. Falls can result from:
To protect employees, employers must provide workers with the correct type of fall protection. Conventional protection types include:
Employers can also implement administrative controls (work practices or procedures that help eliminate hazards) to ensure workers are protected from fall hazards. These include:
While general fall protection requirements landed in the top spot on OSHA’s top 10 violations list, training requirements for fall protection (1926.503) ranked #8 on the list, with 446 more violations than in FY2022. In addition to conventional methods of protection and administrative controls, employers are required to provide training to all employees exposed to fall hazards. Workers should be trained to recognize fall hazards and what procedures to follow to minimize these hazards.
Employers must provide proper protection and training to protect workers from fall hazards in the workplace.
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