Imagine: An employer has a safety incentive program that rewards employees with $50 gift cards each month an employee does not suffer an injury. One day, a machine operator trips on a wet floor and breaks his ankle. The employee promptly reports the injury and misses three weeks of work because of it. Because he suffered the injury, he is no longer eligible to receive a $50 gift card this month. Two months later, a compliance safety and health officer (CSHO) performs a programmed inspection at the employer’s workplace. She performs witness interviews and reviews the employer’s safety manuals, injury logs and safety programs. Two weeks later, the Occupational Safety and Health Administration issues citations for violating various regulations of the Occupational Safety and Health Act. One of the citations alleges that the employer impermissibly retaliated against the machine operator because he was not eligible to receive a $50 gift card that month because he suffered and reported the injury.
Why is that Retaliation?
On May 11, 2016, OSHA issued its controversial final rule on recordkeeping and reporting.[1] The final rule sets forth regulations designed to prohibit retaliation against employees that report work-related injuries or illnesses.