As we reported last week, the U.S. District Court refused to dismiss a challenge to OSHA’s controversial 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers. We asked at the time whether the Trump Administration would continue to defend that change in policy. This week, we saw the first concrete evidence suggesting that OSHA is at least reconsidering and may at a minimum drop its defense of the practice.
While it may be risky to predict with assurance what the outcome will be of the incoming leadership’s assessment of the issues, there is a strong likelihood that the new leadership may abandon not only the defense of this legal challenge but that they will also return to the interpretation of the OSHA regulation allowing for an employee representative at such Safety Walkarounds until 2013. As OSHA’s own rules make clear, while employees have the right to an employee representative present, the “authorized representative(s) shall be an employee(s) of the employer,” unless “good cause is shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”
With the new administration’s nomination of R. Alexander Acosta , it appears that the new incoming leadership may be taking shape at the Department of Labor. No doubt, the question of union representation at OSHA safety walkarounds will be only one of many issues that the incoming leadership personnel at the United States Department of Labor will be taking time to reconsider.
A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.
The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation Letter (the “Letter”), which sets forth the agency’s position that an employee of a union that does not represent the workers at the site may accompany the OSHA representative conducting an inspection. The Federation argued on behalf of itself and one of its members because OSHA had permitted a representative of the Service Employees International Union (“SEIU”) to accompany him despite the fact the SEIU did not represent the workers at the facility. The lawsuit asserts that in allowing this, OSHA had violated its own rules and gave the union rights that it did not have under the law. In the Letter, issued in February 2013, OSHA gave a new definition of “reasonably necessary,” which supported its holding, for the first time, that a third party’s presence would be deemed “reasonably necessary,” if OSHA concluded that the presence of the third party “will make a positive contribution” to an effective inspection. The NFIB’s lawsuit contradicted both the OSHA statute itself and OSHA regulations issued in 1971 following formal rulemaking.
While OSHA asked the Court to dismiss the lawsuit, claiming that the NFIB lacked standing to bring the lawsuit because it could not demonstrate that it had been harmed, and that the lawsuit was procedurally flawed for a number of other reasons as well, Judge Sidney A. Fitzwaterdenied the U.S. Department of Labor’s Motion to Dismiss, finding that “NFIB as stated a claim upon which relief can be granted,” and that “the Letter flatly contradicts a prior legislative rule as to whether the employee representative” in such a walk-around inspection “must himself be an employee.”
The rule Judge Fitzwater referred to, 29 U.S.C Section 1903.8(c) contained OSHA’s policies for what are referred to as “safety walk-arounds,” which are on site workplace inspections. The Letter gives employees in the workplace the right to have a representative present during such an inspection. OSHA’s own rules make clear that such “authorized representative(s) shall be an employee(s) of the employer,” but that when “good cause is shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.” (emphasis added)
If the ultimate outcome of the case, which seems likely, is a finding that OSHA does not have the authority to permit union representatives to participate in OSHA inspections of workplaces where they do not represent the workers, the effect would be to deny unions a potentially potent tool for organizing. As Judge Fitzwater described in his Memorandum and Order, unions such as the UAW in its ongoing organizing campaign at Nissan in Tennessee have come to rely upon participation in OSHA inspections as a valuable tool.
While it is too soon to say whether the Department of Labor will continue to defend the 2013 Letter and the position that OSHA has the right to permit union representatives to participate in safety and health inspections, Judge Fitzwater’s denial of the motion to dismiss raises serious doubt as to the long term viability of OSHA’s position.
Under the various federal whistleblowing protection statutes, employers are prohibited from retaliating against employees who report or raise concerns about workplace health and safety issues. OSHA encourages employers to create and maintain an effective workplace anti-retaliation program so they will not only comply with federal whistleblowing protection laws, but also create a workplace culture that prevents retaliation, improves employee morale and protects employers and members of the public from harm.
According to OSHA, an effective anti-retaliation program must: (1) prevent retaliation and address retaliation complaints; and (2) receive and respond appropriately to employee compliance concerns. OSHA cautions employers that an anti-retaliation program must not discourage or prevent employees from exercising their rights to report violations or file complaints about hazardous workplace conditions or potential violations of the law with OSHA or any other government agency.
OSHA recommends that an effective anti-retaliation program should include the following five key components:
Management leadership, commitment, and accountability
System for listening to and resolving employees’ safety and compliance concerns
System for receiving and responding to reports of retaliation
Anti-retaliation training for employees and managers
OSHA discusses each of these five key components in detail and offers helpful tips on how to incorporate them into an anti-retaliation program. Employers would be wise to compare their anti-retaliation program with OSHA’s recommendations to determine if any adjustments should be made to their program.
 The 22 whistleblowing protection statutes that OSHA enforces are listed at the end of the guidance.
On December 19, 2016, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a final rule amending its record keeping regulations, located at 29 C.F.R. Part 1904. The Amendment clarifies that a covered employer has an on-going obligation to create and maintain accurate records of recordable work-place injuries and illnesses. It did so in response to the decision in AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).
The Occupational Safety and Health Act (“Act”) requires covered employers to create and preserve records of certain workplace injuries and illnesses that are prescribed by the Secretary of Labor. Pursuant to this delegated authority, OSHA has issued regulations that require covered employers to record workplace injuries and illnesses on the OSHA 301 Incident Report form and on the OSHA 300 Log form, within seven days of learning of a recordable workplace injury or illness, to review the Log for accuracy at the end of each calendar year and to correct any deficiencies found during the annual review. A covered employer must prepare, certify and post annual summaries of the recordable workplace injuries and illnesses that occurred during the previous year by February 1 and keep them posted until April 30. OSHA regulations further require covered employers to maintain its Logs, Incident Report forms and annual summaries for five calendar years and to make this information available to its employees, OSHA, and the Bureau of Labor Statistics. OSHA may issue citations for violations of the Act, but must do so within six months after “the occurrence of any violation.” 29 U.S.C. § 658(c). The new continuing obligation provides the basis for record-keeping violations to be timely years after a reportable incident under the rationale of the AKM case.
When this final rule becomes effective on January 18, 2017, covered employers will have a continuing obligation to create and maintain accurate records of recordable workplace injuries and illnesses and to update their records during the five year retention period.
To comply with OSHA’s amended regulations, employers should:
Ensure that it completed OSHA 301 Incident Report forms for all recordable workplace injuries and illnesses that occurred during the previous year and ensure that its OSHA 300 Log form accurately reports all recordable workplace injuries and illnesses and, if appropriate, update the Log with any recordable workplace injuries and illnesses not previously recorded.
Conduct an audit of its OSHA 300 Log forms for the past five years to confirm that they accurately reported all recordable workplace injuries and illnesses that occurred during the past five years. The audit should also include a review of the employer’s OSHA 301 Incident Report forms to ensure that the employer completed forms for each recordable injury and illness during the past five years.
Featured on Employment Law This Week:The Occupational Safety and Health Administration (OSHA) has issued a final rule for handling retaliation under the Affordable Care Act (ACA).
The ACA prohibits employers from retaliating against employees for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. The ACA also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms in the ACA. OSHA’s new final rule establishes procedures and timelines for handling these complaints. The ACA’s whistleblower provision provides for a private right of action in a U.S. district court if agencies like OSHA do not issue a final decision within certain time limits.
This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will speak at the first plenary session on the latest developments in Washington, D.C., that impact employers nationwide.
We are also excited to have Dr. David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, serve as the guest speaker at the second plenary session. David will discuss the areas on which the Wage and Hour Division is focusing, including the new overtime rules.
In addition to workshop sessions led by attorneys at Epstein Becker Green – including some contributors to this blog! – we are also looking forward to hearing from our keynote speaker, Former New York City Police Commissioner William J. Bratton.
On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically. The amendments also include provisions designed to prevent employers from retaliating against employees for reporting injuries and illnesses at work. The information employers provide will be “scrubbed” of personally identifiable information and published on OSHA’s website in a searchable format.
Every workplace with 250 or more employees will be required to electronically submit OSHA 300 Logs, 301 Forms, and 300A summaries on an annual basis. Workplaces with 20 or more employees in industries that OSHA has deemed hazardous and listed in the rule must submit OSHA 300A summaries to OSHA electronically on an annual basis as well. The information kept in the logs and on the forms remains the same, as does the calculus for determining whether an injury or illness is a recordable.
The new requirements will be phased in, requiring employers to electronically submit their 300A summaries on July 1, 2017 and their 300 Logs, 301 Forms and 300A summaries on July 1, 2018. State plans are required to adopt systems with the same deadlines.
OSHA plans to rely upon computer software to remove personally identifiable information from these records. The software will supposedly remove all of the fields that contain identifiers such as the employee’s name, address, and work title, and to search the narrative field in the form to ensure that no personally identifiable information is contained in it. OSHA’s reliance on a computer system to detect every piece of identifiable information in a narrative is terribly risky and increases the potential for a data breach.
The publication of this information on a searchable database will allow the public, including the press, to seek out employers with what appear to be higher than average numbers of injuries and illnesses and continue the public shaming campaign so often relied upon by OSHA under the Obama administration. The public dissemination of this information also simplifies the process of unionization, permitting unions to identify possible targets based on perceived unsafe working conditions.
Although there are already whistleblower protections in place to prevent retaliation by employers when employees report injuries and illnesses, the new rule includes a number of additional anti-retaliation protections, including a provision that dramatically limits an employer’s ability to test for drug use when an employee has been involved in an incident. Under the new rule, post incident testing is to be limited to situations in which the possibility that the employee was impaired by drug use is quite likely to have contributed to the incident and for which the test can accurately identify impairment caused by drug use. In many cases, such as when an employee may have been impaired by marijuana at the time of the incident, employers are essentially left with no ability to test as there are multiple ways to test for the presence of the drug in an employee’s system, but no established standard for what constitutes marijuana impairment. This issue is increasingly important as states such as Colorado make recreational marijuana use lawful.
So What Should Employers Do Now?
Train employees on the new rules and when they go into effect.
Ensure that employees understand that they will not be retaliated against for reporting work-related injuries and illnesses and are, in fact, encouraged to report them.
Re-train the employee(s) responsible for injury and illness recordkeeping on the basics of recordkeeping and provide thorough training on the new rule with an emphasis on protecting personally identifiable information to the extent possible while remaining in compliance with the new regulatory requirements.
Review and revise drug testing policies to bring them into compliance with the requirements of the new rule.
The Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health issued interim guidance on April 10, 2016, for protecting outdoor workers who may be exposed on the job to mosquitos and healthcare and laboratory workers exposed on the job to body fluids of individuals infected with Zika virus. Although the guidance is not a standard or regulation, employers should be mindful that OSHA can always issue citations under the General Duty Clause (OSHA’s catch all provision requiring all employers to provide employees with safe workplaces and safe work) should the agency find that an employer did not take sufficient precautions to protect employees from the virus.
Employers with outdoor workers, including seasonal retail lawn and garden workers in areas affected by the Zika, and workers in the healthcare industry should consult the guidance for information about the risk of exposure and effective worker protections.
The article notes that the lawyers weighed in with “simple, actionable tips that can help you craft your legal strategy and directly affect the outcome of your OSHA interaction.”
FINE INCREASES AND CRIMINAL PROSECUTIONS
Ms. Butera’s tip focuses on recent increases in OSHA fines and criminal prosecutions. She explains that “now more than ever, employers should be consulting with their OSHA counsel as soon as OSHA or the EPA show up. If an OSHA violation is found, the employer is not just facing huge penalties but a prison sentence as well.”