October 3, 2022

Volume XII, Number 276


October 03, 2022

Subscribe to Latest Legal News and Analysis

Developing Effective Workplace Safety Programs - Part 2

When workplace safety programs are put in place, the expectation is that they will yield certain outcomes. Generally, they are designed to measure and monitor concerns such as incidence rates of injuries and illnesses, number and duration of workers compensation claims, and reduced costs associated with unscheduled absences. But what about the unintended consequences?

Consider the example of an employee who is hurt on the job but tries to cover up the injury and claim that he was really hurt at home. This is because in an effort to promote workplace health, safety and injury prevention, the employer established an incentive program that rewards departments that are incident-free for a specified period of time. Knowing this, the employee does not want to be the one who ruins a safety bonus for himself and his co-workers. His immediate supervisor is aware of what he is doing and purposefully looks the other way so as not to mar her department's track record or her personal performance ratings.  

In such cases, an incentive that was designed to promote safety and prevent injuries can lead to the under-reporting of injuries and workers compensation claims.

Clearly, this is not what the employer intended. But only by looking at both the intended and unintended consequences-from desirable behaviors to those that run contrary to company policies-can employers gauge the effectiveness of workplace programs. 

Unintended consequences are not entirely a bad thing. They give employers the opportunity to learn from mistakes and adjust programs accordingly. Employers can better understand how workplace policies and procedures function, and what can be done to address the gray areas, loopholes and conflicting programs that can interfere with performance goals. 

One important area that can be addressed is supervisor and manager education and training. Often, individuals are promoted into supervisory positions based on their technical knowledge and ability to perform a job. However, they often lack the necessary management skills and in-depth knowledge of workplace policies regarding safety, risk management, return-to-work, job retention, and health and wellness. Managers need to appreciate how a well-designed return-to-work program, for example, can help reduce costs and raise workforce morale. 

Supervisors may believe they are making good decisions when they cut corners to save time and money or when they try to make a particular department look good. They may even be fully aware that they are deliberately circumventing workplace practices in order to benefit their staff. But in the end, even if their intentions are good, they are still acting contrary to company policies. 

Managerial Mischief 

Consider the example of an employer that noticed a pattern of frequent requests for fitness-for-duty evaluations for employees returning to work after an injury. Fitness-for-duty, as part of a return-to-work program, is meant to establish clear criteria to justify the need for an evaluation and must meet requirements under both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). A well-designed process includes clear roles and responsibilities of the front-line supervisor, managers and specialists involved so that legal requirements are met and guidance is provided to support the returning employee. In this instance, the pattern of fitness-for-duty requests was above average and appeared to target specific employees. 

Upon further investigation, the safety officer discovered that several of the fitness-for-duty evaluations were actually attempts to block employees who had poor performance records from returning to work. This was a clear misuse of a workplace policy meant to promote safety, and an example of "managerial mischief," a term that was popularized by Jay Shafritz and Peter Madsen in their 1990 book, Essentials of Business Ethics. These practices are more than just examples of "mischievous" or unethical behavior, however. By subverting the intention of company policies and programs, this behavior may also create a litigation risk. 

Program Evaluation

Evaluating and assessing the consequences of workplace programs requires a multi-disciplinary approach. This may involve a diverse mix of specialists, each licensed to serve as subject matter experts. The contributions of these specialists, such as certified disability managers, bring focus to the intended objectives and deliverables of fitness-for-duty and return-to-work programs.  

Taking a multi-disciplinary team approach is crucial. When various departments work toward common goals they reduce the risk for misinterpretation, miscommunication and, ultimately, unintended consequences. Consider the first example of the employer that established both safety initiatives to reduce the incidence of occupational injuries and monetary incentives to reward those departments that met or exceeded the stated objectives and goals. Although the expected result was to make employees more safety conscious at work, the unintended consequence actually compromised their safety by resulting in the under-reporting of injuries. If multiple departments were involved in the development of these programs, they might have spotted the potential conflict that these initiatives created.

Workplace practices also need to be evaluated within the context of supervisors' span of control. When something unexpected occurs, such as an employee injury, the whole operation is affected, creating stress for all involved. Questions regarding how and by whom work will be performed while the injured employee is off the job need to answered.

Now, what if workplace programs reward certain productivity measures with a monetary bonus? Could this policy put pressure on other, less experienced employees who are expected not only to do their jobs but pick up the slack because of the absent employee? What if this leads to the use of shortcuts that pose safety hazards?

Although metrics and performance goals for productivity, customer satisfaction and so forth are important, programs that reward achievement of these goals cannot be allowed to undermine workplace safety, prevention and employee health. Unless workplace programs are examined in the context of their consequences, a company may open itself up to greater and more costly risks than those associated with a single incident.

Employer Responses

How can employers respond when they suspect that managers are misusing workplace programs or exploiting a loophole? Traditionally, a progressive discipline program would solve most infractions. But with the changing legal landscape and reporting requirements impacting business, another tool to use is the Sarbanes-Oxley Act of 2002. Along with other financial accountability and reporting standards, Sarbanes-Oxley has many elements addressing regulatory and legal reporting and record-keeping that can impact workforce safety and return-to-work programs. Taking a Sarbanes-Oxley approach helps ensure that the company has a system of checks and balances, including independent reviews. Today, many businesses also require supervisors and managers to attest annually to their compliance with legal and regulatory standards and procedures, which places added responsibility and accountability upon individuals.  

Another avenue of control is through the Occupational Safety and Health Administration (OSHA). The Occupational Safety and Health Act is designed to regulate employment conditions relating to occupational safety and health. The act provides for a wide range of substantive and procedural rights for employees and their representatives, while also recognizing that effective implementation and achievement of goals depends in large measure on employee participation. The act also includes safeguards for whistleblowers, protecting employees from discharge or retaliation for complaining to OSHA or for seeking an OSHA inspection. 

Corporate Culture 

An employer's best defense against misuse of workplace programs may be its corporate culture. If a company says its people are its most important asset, policies and procedures should reflect that philosophy. Admittedly, this culture change could take years. To pursue that goal, leaders of organizations must create and foster an environment that drives ethical behavior and accountability, with buy-in from top management through the ranks to front-line managers, supervisors and employees. 

Garnering the support from top management can be accomplished by communicating the importance of continual improvement for existing workplace programs and implementing changes when there are effects that run contrary to their purpose. Corporate leaders need to close these loopholes to prevent potential litigation, FMLA or ADA violations, or even criminal and civil penalties that may result from the late reporting of workers compensation claims. 

As problems are identified, data collection and analysis are crucial to track performance metrics, such as experience modification rate, duration of short-term disability or workers compensation leave, and the number of cases handled by the return-to-work program, as well as the costs associated with each program. Tracking data will reveal those times when the numbers do not add up-when reported injures are down but claim costs are higher-which could be a significant red flag.

Even with the best of intentions, workplace programs and policies can have unintended consequences, from managers deliberately circumventing procedures to an honest mistake. Clear education and communication to all employees, supervisors and managers may help keep workplace programs focused on their intended purpose: to protect the physical and psychological well-being of employees and enhance the bottom line for the business. 

Written by Maria S. Henderson & Michael W. Thompson.

Maria S. Henderson, MS, CRC, CDMS, CCM, is chair of the Certification of Disability Management Specialists Commission and founder and principal of HDM-Solutions, Inc., a consulting firm that specializes in health and productivity management. Michael W. Thompson, CSP, is a commissioner of the CDMS Commission and global health, safety and environment advisor for BP America, Inc.

The above article is reprinted from the May 2010 edition of Risk Management Magazine.  

Reprinted with permission from Risk Management Magazine. Copyright 2010 Risk and Insurance Management Society, Inc. All rights reserved.National Law Review, Volume , Number 147

About this Author

Risk Management Magazine is the premier source of analysis, insight and news for corporate risk managers. RM strives to explore existing and emerging techniques and concepts that address the needs of those who are tasked with protecting the physical, financial, human and intellectual assets of their companies. As the business world and the world at large change with increasing speed, RM keeps its readers informed about new challenges and solutions.

Risk Management Magazine is delivered monthly to 17,000 readers. It is published by the Risk and Insurance Management Society, Inc. (...