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Catch-22: OSHA’s Catch-11(c)

Aug. 2, 2014

American Novelist Richard Heller’s Catch-22 is required reading in many high school literature classes. Set in World War II, the characters struggled with their conflicting goals. Naturally, they wanted to perform their military duty. However, they also wanted to return home safely. As history has confirmed, flying heavy bombers during World War II was not a safe activity. Consequently, the characters could not simultaneously maximize their goal to successfully bomb enemy positions while also maximizing their goal to return home safely. They called the situation a Catch-22.

Today, we could write a book set in the twenty-first century called Catch-11(c). Under the Occupational Safety and Health Act, employers in the United States are required to provide a safe working environment. Section 11(c) of the Act prohibits employers from discriminating against employees who report injuries or illness. Although that sounds simple enough, Section 11(c) has been interpreted in a manner that creates a Catch-22 for employers trying to maximize both compliance and safety. Let’s call it a Catch-11(c), instead.

Richard Fairfax, the Deputy Assistant Secretary of the Occupational Safety and Health Administration (OSHA) issued a directive instructing OSHA compliance staff to be particularly vigilant under certain circumstances. Compliance officers will dig deeper if an employee complains of discrimination or retaliation for reporting a workplace injury. Fairfax listed four particular situations upon which enforcement officials should focus:

  1. Disciplining an employee for becoming injured or for reporting an injury without regard to the circumstances under which the injury occurred. The document reminds us that reporting an injury is always protected activity.

  2. Disciplining an employee due to the manner in which an injury was reported. Although employers may establish protocols for responding to and reporting injuries, OSHA regulations require that procedures do not “unduly burden” employees’ abilities to report injuries.

  3. Disciplining an employee whose injury arose from violation of an employer’s safety rule. The Fairfax memo cautions, “In some cases, however, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury. A careful investigation is needed.”

  4. Offering incentives not to report injuries, such as giving safety awards for not being injured.

Item one simply requires that employers neither discipline injured workers solely for having become injured, nor discipline any worker for reporting an injury. Item two simply requires employers to keep employee injury reporting relatively simple. Those rules make sense within a safety-minded workforce injury reporting framework. Items three and four are where the Catch-11(c) arises.

Item three indicates that OSHA will scrutinize employers who discipline employees for violating safety rules. Instead of adopting the view that workplace safety rules are completely in alignment with OSHA’s purpose, the administration cynically takes the stance that employers would prioritize reduced injury report data above employee safety. Under the Fairfax memorandum’s guidance, OSHA investigators will look for any reason to penalize an employer for disciplining an injured employee for violation of a workplace safety rule.

As if things were not difficult enough, item four of the Fairfax memorandum also directs OSHA investigators to be leery of safety rewards. Thus, in pursuing workplace safety by clearing barriers to injury reporting, OSHA has interfered with workplace safety by creating barriers to enforcing safety rules or rewarding workers who engage in safe conduct: Catch-11(c).

Employees often engage in activity within the scope of OSHA’s authority, even in non-industrial settings. Someone might use a ladder to change a light bulb, enter a confined space, or work with cleaning chemicals. There are stairs to fall down, places where hands can go but should not, hot surfaces, glass that can break, and numerous other normal risks. We cannot abolish workplace injury, but we can manage our risks. Even so, safety risks are infused with legal risks that should be considered both in policy construction and enforcement.

Please do not hesitate to contact the Firm with any questions you may have about workplace injury issues.