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.”
On January 1, 2015, OSHA rolled out its Severe Injury Reporting Program, requiring all employers to report to OSHA within 24 hours any work-related amputations, inpatient hospitalizations, or loss of an eye. The long standing requirement to report work-related fatalities to OSHA within 8 hours also remains in place.
According to a report issued by OSHA on January 17, 2016 evaluating the impact of the new reporting requirements, before the requirements were established, compliance officers were often dispatched to inspect a fatality in the workplace, only to discover a history of serious injuries had taken place there in the past, unbeknownst to OSHA. The new reporting requirements were intended to enable the agency to better target enforcement efforts and engage more high-hazard employers in identifying and eliminating serious hazards. “In case after case, the prompt reporting of worker injuries has created opportunities for us to work with employers we wouldn’t have had contact with otherwise,” said Assistant Secretary of Labor for Occupational Safety and Health David Michaels, who authored the report. “The result is safer workplaces for thousands of workers.”
Making a severe injury or fatality report to OSHA does not necessarily result in a visit from compliance officers. Rather, in 62% of the over 10,000 reports OSHA received this year, employers were instructed to investigate the incident themselves and produce to the agency a Rapid Response Investigation report in which the employer explains the root cause(s) of the incident that resulted in the severe injury and what the employer has done or plans to do to address the hazard(s) it has discovered. OSHA intends to continue this practice, as it has proven effective, and is an efficient use of OSHA’s limited resources.
Although 10,000 severe injury reports in the first year (translating into about 30 fatalities or serious injuries per week) may seem like a large number, OSHA says it strongly believes that a substantial number of injuries that should have been reported were not. The agency reached this conclusion by looking at a number of different factors including the number of injury claims submitted to state workers’ compensation programs, which indicated that employers may be underreporting to OSHA at a rate of over 50%.
Most of the reports that OSHA received this year were from large employers so OSHA believes the underreporting is caused by lack of awareness of the rule among small and mid-sized employers. The agency intends to address this issue with a major outreach campaign this year which will be accomplished through efforts with insurers, first responders, and business organizations, among others.
There is also a concern that some employers are well aware of the rule but perceive the cost of not reporting as too low to be concerned about it. OSHA warns in its report that with the new reporting requirements now in their second year, employers who have intentionally failed to report are far more likely to receive citations carrying penalties of up to $7,000 for failure to report, and those penalties will increase by approximately 80% when OSHA’s penalties are adjusted later this year.
This exemption applies to workplaces with 10 or fewer workers who perform work in industries OSHA deems low hazard. OSHA identifies low hazard industries by studying the most recent results of mandatory surveys sent to employers in countless industries by the Bureau of Labor Statistics which collect information about how often employees were unable to perform their normal job duties because of workplace injuries or illnesses. Those industries with the lowest numbers are included in the list.
The change to the list became effective on January 29, 2016, and will remain in effect until updated, which typically happens at the beginning of each year.
Newly Exempt Industries
There are over 400 industries included in the list of exempt small businesses. Among the industries newly exempt from inspections are:
Electrical contractors and wiring installation contractors
Soybean and other oilseed processing
Inorganic chemical manufacturing
A number of retail industries including boat dealers, motorcycle dealers, floor covering stores, electronics stores, meat markets, fish and seafood markets, tobacco stores and vending machines
Farm product warehousing and storing
Residential and Nonresidential property managers
Full-service restaurants, cafeterias, buffets and snack bars
Industries No Longer Exempt
Many of the industries deemed exempt in the last revision of this list no longer enjoy an exemption from inspections. A sampling of the industries no longer included in the list includes:
Heavy and civil engineering construction
Industrial gas manufacturing
Medicinal and botanical manufacturing
Retailers including RV dealers, household appliance stores, all manner of electronics and computer stores, paint and wallpaper stores, fruit and vegetable markets, and beer, wine and liquor stores
Investment and securities dealing, securities brokerage, commodity contracts dealing, and commodity contracts brokerage
Pension funds, health and welfare funds, and other insurance funds
Employers should be mindful that even if they have 10 or fewer employees performing work in an exempt industry they are still at risk of an OSHA inspection if employees suffer a work-related fatality or severe injury (see related story) or an employee makes a complaint to OSHA.
At a construction worksite, a supervisor and his subordinate from Quinlan Enterprises were found working on a 15 foot wall without fall protection or a secure ladder. The company was held responsible for the OSHA violation, because, in most cases, a supervisor’s knowledge of a violation is imputed to the employer. Quinlan appealed citing the Eleventh Circuit’s Comtran decision. Comtran held that when a supervisor participates in the violation independently, that supervisor’s knowledge of the act is not sufficient to establish that the employer is aware. The Quinlan court disagreed, noting that the Comtran exception does not apply because the supervisor was not the sole participant in the violation.
The Department of Justice and the Department of Labor have teamed up to encourage federal prosecutors to pursue OSHA and other worker safety violations as environmental crimes. These crimes can be charged as felonies, while OSHA violations are considered misdemeanors. The initiative will facilitate the sharing of information and files between the DOJ and DOL to pursue criminal actions.
To establish that an OSHA regulation has been violated, the Secretary must prove that: (1) the regulation applied; (2) it was violated; (3) an employee was exposed to the hazard that was created; and (4) the employer knowingly disregarded the OSH Act’s requirements. The general rule has been that the knowledge of a supervisor is imputed to the employer – so if the supervisor knew or should have known of the violation, his knowledge is imputed to the employer and the Secretary can use this fact to show that the employer had knowledge of the violation.
The Court of Appeals for the Eleventh Circuit in Comtran Group, Inc. v. U.S. Dept. of Labor, 722 F.3d 1304 (11th Cir. 2013) held that there is an exception to the general rule: when a supervisor is acting independently and knows that he himself has violated an OSHA regulation, his knowledge of his own violation is not necessarily imputed to his employer. The Comtran court found that in such instances the Secretary must prove something more than the supervisor’s own knowledge of his own wrongful conduct to establish the employer knowledge element of a violation. Specifically, the Secretary must show that the employer had reason to foresee the unsafe conduct of the supervisor.
On January 8, 2016, in Quinlan v. Secretary, U.S. Department of Labor, No. 14-12347 (11th Cir. January 8, 2016), the Court of Appeals for the Eleventh Circuit faced a slightly different issue – is supervisor knowledge imputed to the employer when a supervisor acts in concert with a subordinate employee and both supervisor and employee violate an OSHA standard? The Eleventh Circuit refused to apply the reasoning of Comtran and held that it is — a supervisor’s knowledge of a subordinate employee’s OSHA violation is imputed to an employer when a supervisor working for the employer is aware of the subordinate employee’s OSHA violation and the supervisor is simultaneously involved in the violation.
The takeaway for employers is that the supervisory misconduct defense applies only when a supervisor violates an OSHA standard independently, and even then, it is not always a successful defense. Accordingly, employers should take steps to ensure that safety programs are applied effectively to supervisors and subordinate employees such as:
Provide supervisors and subordinate employees with training on every safety standard and company policy related to their work. Ensure all employees comprehend the training to effectively reduce the possibility of a violation taking place.
Remind supervisors to lead by example by following all safety rules and refusing to cut any corners.
Remind supervisors that if they observe a subordinate employee committing a safety violation, they must put an end to it immediately, and where appropriate, initiate disciplinary action. Otherwise, that supervisor’s knowledge will be imputed to the employer.
Remind supervisors that they too are subject to disciplinary action should they fail to follow safety rules and company policies.