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OSHA Protects Employees From Retaliation for Reporting Injuries?

The Labor Department is watching this issue. These types of claims are increasing, and you take a risk of a retaliation claim if you terminate an employee who reported a workplace injury.

February 20, 2014

Like many states, Ohio has a statute that protects workers from retaliation for filing a workers’ compensation claim. But that statute is not the only one that protects the rights of employees injured on the job. OSHA also protects employees from retaliation for reporting workplace injuries.

Case in point: the U.S. Department of Labor recently filed suit against Ohio Bell, claiming that it wrongfully suspended 13 employees who had reported workplace injuries to their employer, according to the Cleveland Plain Dealer.

And, these cases are only becoming more prevalent. According to the Wall Street Journal, in the last decade the number of workplace injuries has decreased by 31 percent, while the number of retaliation claims stemming from workplace injuries has doubled. In other words, employees are getting hurt less, but claiming retaliation more.

The Plain Dealer article quotes Dr. David Michaels, assistant secretary of labor for occupational safety and health, “It is against the law for employers to discipline or suspend employees for reporting injuries.” I think we can agree with Michaels that this type of retaliation is illegal and shouldn’t happen.

Let’s suppose, however, that this employer wasn’t disciplining employees for suffering on-the-job injuries, but instead was disciplining employees for violating established safety rules. Doesn’t an employer have a legitimate interest in enforcing its safety rules to deter future violations and create a safer workplace, even if it results in discipline or termination? How does an employer walk this line without arousing the DOL’s ire?
 

  • For starters, you can treat all employees the same, based on the severity of the safety violation, and regardless of whether the injured employee self-reported the injury or not. Thus, you can start to build a case that safety, and not retaliation, guided your decision-making.
  • And, you should make safety a priority. Have clear written safety rules for employees to follow. Train your employees on your rules and others safe-workplace principles. Institute regular safety meetings. Creating a workplace built around safety is not only better for your employees, but it will help you show that you prioritize safety, not retaliation, if an injured employee (or the government) brings suit.

In the meantime, know that the DOL is watching this issue. These types of claims are increasing, and you take a risk of a retaliation claim if you terminate an employee who reported a workplace injury.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.