OSHA Law Update

A Hazard Communication

OSHA and NLRB Create Loophole for Stale Safety Whistleblower Claims

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By Eric J. Conn — Chair, EBG’s national OSHA Practice Group

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA.  The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.”  As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)) requires employees to file complaints alleging retaliation for protected safety related whistleblower activities within thirty days of the triggering adverse employment action.  The Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate, Labor and Pensions Subcommittee on Employee and Workplace Safety about OSHA’s whistleblower program.  One of the key points of his testimony was that between 300 and 600 Section 11(c) complaints per year (roughly 10%) were filed beyond the 30-day deadline.  Dr. Michaels added that at least 100 of these complaints barely missed the deadline — by less than a month.

The National Labor Relations Act (NLRA), on the other hand, addresses different types of claims and also provides for a much longer statute of limitations.  Section 7 of the NLRA provide: “Employees shall have the right to. . . engage in concerted activities for the purpose of collective bargaining or other mutual air or protection.”  Section 8 prohibits unfair labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”  The NLRA has a 6-month statute of limitations for claims of unfair labor practices.

Because the NLRA’s statute of limitations is six months longer than the OSH Act’s, OSHA agents will now advise employees who file an untimely Section 11(c) claim that their claims may qualify as unfair labor practices under the NLRA, and explain their rights to file such claims with the NLRB, where their claims could be timely.  For a claim to qualify for protection as an unfair labor practice, however, the claim must involve “concerted activities.”  Thus, not every employee who was unable to file a timely Section 11(c) complaint will have a viable unfair labor practice claim, even if it would be timely under the NLRA.

The NLRB has provided a set of talking points to OSHA to help the OHSA agents discuss these rights with employees:

  • OSHA recommends that you contact the NLRB as soon as possible, to inquire about filing a charge alleging unfair labor practices.
  • The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
  • The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union.
  • OSHA may not determine whether you are covered by the NLRA. Please contact the NLRB to discuss your rights under the NLRA.

OSHA also plans to include this information when it sends letters alerting employees that their 11(c) claims are being closed as untimely.

Neither the NLRB nor OSHA has addressed the legal issues posed by this agreement.  Congress intended that employees must file safety related whistleblower complaints very quickly, which is why it set such a short limitations period.  The short deadline for such claims makes sense because safety and health issues pose special risks; i.e., it is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting such issues could have grave consequences.  Creating a loophole or backdoor to extend the filing deadline for claims that could have been timely pursued as 11(c) claims by treating them as NLRA violations could discourage timely reporting under the OSH Act. Continue Reading

Webinar Recording — OSHA’s Severe Violator Enforcement Program

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On June 10, 2014, our colleague Eric J. Conn, Chair of Epstein Becker Green’s national OSHA Practice Group, presented a webinar regarding OSHA’s Severe Violator Enforcement Program (SVEP). The SVEP is an OSHA enforcement program intended by OSHA to direct its enforcement resources at employers whom OSHA believes are “indifferent to their OSH Act obligations.”

The webinar covered:

  • What the SVEP is;
  • How and when employers “qualify” into it;
  • What the consequences are for doing so;
  • Interesting data and trends about the SVEP; and
  • Tips to help employers avoid this fate.

This webinar was the second part in a five-part OSHA webinar series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.  Read more about the webinar series, or click here to register for the remaining briefings.

As was mentioned during the webinar, these briefings will all be recorded, and the recording and slides from the Severe Violator Enforcement Program webinar are now available.  To download either or both, click here, scroll to the bottom of the page, insert the password “OSHA2” in the box, and click “Go.”  Links to a PDF of the slides and to the full recording of the webinar will appear at the bottom of the page.

Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance

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Eric J. Conn, Head of EBG’s national OSHA Practice Group, James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled “Hospitals’ Heavy Lifting:  Understanding OSHA’s New Hospital Worker and Patient Safety Guidance.”

The article, published in AHLA’s Spring 2014 Labor & Employment publication, summarizes OSHA’s new web-based “Worker Safety in Hospitals” guidance, explains how the guidance relates to OSHA’s existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as well as an effective Safety and Health Management System.

The article goes on to forecast what OSHA’s Hospital Safety guidance will mean in the future for employers in the healthcare industry, including:

  1. More Whistleblower Complaints;
  2. Heavier enforcement by OSHA;
  3. Increased enforcement by the Joint Commission; and
  4. Greater interest in safety and health related legislation.

 

Finally, the article provides recommendations for what hospital and health system employers can do now to prepare for these developments, including:

  1. Reviewing and digesting the new OSHA hospital patient and employee safety resource;
  2. Work with employees and/or contractors to improve Safe Patient Handling Programs and/or a Safety and Health Management Systems; and
  3. Prepare for more safety-related whistleblower complaints by setting up effective processes to quickly investigate and address complaints and employee injuries and illnesses.

 

Below are some excerpts from the article:

On January 15, 2014 the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new online resource to address both worker and patient safety in hospitals.

According to OSHA, a hospital is one of the most dangerous places to work, as employees can face numerous serious hazards from lifting and moving patients, to exposure to chemical hazards and infectious diseases, to potential slips, trips, falls, and potential violence by patients—all in a dynamic and ever-changing environment. . . . Continue Reading

OSHA Head Urges Update to Whistleblower Provisions

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By John F. Fullerton and Eric J. Conn

On April 29, 2014, the Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate Education, Labor and Pensions Subcommittee on Employee and Workplace Safety to seek a number of changes to the whistleblower protection provisions of Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) so it would track provisions of other, more recent whistleblower protection laws.  Here is a link to Dr. Michael’s testimony.

The provisions at issue are intended to protect employees from retaliation by their employers for bringing to OSHA’s attention potential violations by the employers of the OSH Act.  These whistleblower provisions have not been updated since the law was passed in 1970, and OSHA is now seeking to strengthen them.

In his testimony on the Hill, Dr. Michaels expressed that:

“The antiretaliation statutes that Congress has enacted since the OSH Act was passed provide greater protections and stronger remedies for workers who have been retaliated against.  To give 11(c) the teeth it needs to be as effective, it must be updated to improve procedures for filing, investigating and resolving complaints.”

To “modernize” the OSH Act whistleblower provisions, Dr. Michaels proposed the following recommendations:

  1. Expanding the current 30-day statute of limitations to 180 days, so that it is the same as other more recently passed laws, such as the Dodd-Frank amendments to the Sarbanes-Oxley Act.  Michaels explained that OSHA cannot address more than 200 OSH Act whistleblower allegations annually because employees do learn of the employer’s retaliatory motive until more than 30 days after the adverse employment action.
  2. Authorizing OSHA to order the “immediate preliminary reinstatement” of employees whom the agency believes have been wrongly discharged for reporting possible safety issues.
  3. Including “individual right of action” provisions that would allow whistleblowers to pursue actions in directly in federal court after a certain length of time if the agency has not acted, as permitted under the Sarbanes-Oxley Act.

In addition, he reported that OSHA’s advisory committee on whistleblower protection, created in 2012 and comprised of employment attorneys, law professors, labor union representatives and others, is planning to devise a set of concrete recommendations for employers who want to improve their compliance with the Act’s whistleblower provisions, saying:

“We know that some employers are only impacted by fear of inspections. There are lots of other employers who want to do the right thing, and we have to help them . . .  Right now, our message is simply, ‘Don’t retaliate against whistleblowers.’ We have to do better than that — we have to say, ‘Here is the program, here is the management system that will help you learn what your workers’ concerns are and how you can address them best.’”

It remains to be seen whether Congress will act on Michaels’ proposals, and what concrete recommendations the advisory committee develops.  As always, any important developments will be reported here on this blog.

OSHA Injury and Illness Recordkeeping Checklist — Article Series in the Grain Journal

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The Grain Journal recently published a series of seven articles by our colleague Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker Green.  The articles outline a checklist for employers to follow in order to comply with OSHA’s complex Injury & Illness Recordkeeping regulations. The articles are broken down as follows:

  1. Scope of OSHA’s Injury & Illness Recordkeeping Rule;
  2. OSHA’s Recordkeeping Forms;
  3. Recording Injuries and Illnesses;
  4. Recording Workplace Injuries/Illnesses;
  5. Miscellaneous Recording Procedures;
  6. Updating and Verifying Records; and
  7. Recordkeeping Action Plan.

Here is an excerpt from the article series:

“The Occupational Safety and Health Administration (OSHA) regulations at 29 CFR 1904 and 1952 set forth a maze of injury and illness recordkeeping and reporting requirements applicable to approximately 1.5 million U.S. workplaces.  OSHA places significant emphasis on injury and illness recordkeeping, because the data culled from employers’ injury and illness logs is used by OSHA to identify workplace safety and health problems and to track progress in solving those problems. OSHA also uses recordkeeping data to improve standards, tailor enforcement programs, and focus individual inspections.

This checklist is intended to help employers decode OSHA’s complex recordkeeping regulations and simplify the process.”

 

The article reflects the collective experience and expertise of Epstein Becker Green’s national OSHA Practice Group.  To access the full article, please click here.

Webinar Recording — OSHA’s Temporary Worker Initiative

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On April 8, 2014, our colleague Eric J. Conn, Chair of Epstein Becker Green’s national OSHA Practice Group, presented a webinar regarding OSHA’s Temporary Worker Initiative. The briefing addressed enforcement issues and data related to the temporary work relationship, and recommendations and strategies for managing safety and health issues related to the temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

This webinar was the first in a five-part OSHA webinar series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.  Read more about the webinar and the series, or click here to register.

As was mentioned during the webinar, these briefings will all be recorded, and the recording and slides from the Temporaroy Worker webinar are now available.  To download either or both, click here, scroll to the bottom of the page, insert the password “OSHA1” in in the box, and click “Go.”  Links to a PDF of the slides and to the full recording of the webinar will appear at the bottom of the page.

OSHA Enforcement of Fall Protection on Rolling Stock — A BioFuels Journal Article

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Our colleague Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker Green, co-authored an article in BioFuels Journal entitled “Railcar Fall Protection: What OSHA Requires from Ethanol Plant Operators.”  Although the article principally addresses OSHA’s enforcement landscape related to work on top of railcars at ethanol plants, the analysis carries over to work on top of any rolling stock (e.g., tanker trucks, railcars, rigs, etc.) in any industry.

Here is an excerpt from the article:

Addressing fall hazards is always among the OSHA’s top enforcement priorities.  Indeed, OSHA’s fall protection standards continue to rank among the most frequently cited year after year.  The use of fall protection equipment for work on top of rolling stock, however, is one of the most confusing and inconsistently enforced OSHA requirements, particularly for work on top of railcars at grain elevators facilities and ethanol plants.

There are numerous work activities that require employees to stand on and walk between the tops of railcars . . .from stowage inspections and prepping cars, to helping guide a loadout spout into a railcar, or allowing state or federal grain inspectors to access railcars for sampling and grading.  With potentially miles of track where these work activities may need to be performed on top of railcars, there often is no feasible method for employees to tie off a harness and lanyard over the tracks.

The article goes on to explain the current state of the law in this area, including a detailed analysis of OSHA’s 1996 Miles Memo (a formal interpretation about rolling stock fall protection requirements), a recent OSH Review Commission decision interpreting the Miles Memo, and a series of recommended practices for employers.

Here is a link to the article.

 

OSHA to Target Auto Supply Manufacturers

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By Amanda R. Strainis-Walker

OSHA recently launched a Regional Emphasis Program (REP) that will focus enforcement resources on employers operating in the automotive supply manufacturing industry.  This new Auto Supply Manufacturers enforcement program will target manufacturers in the southeast that supply engines, airbags, trim, or any other automotive products.  The specific geographic areas covered by the inspection program include at least Georgia, Mississippi, and Alabama.

“Hazards associated with the Auto Parts Supplier Industry that are the focus of this REP continue to be the source of serious injuries, including amputations, and deaths to employees,” OSHA explained in the REP.  “The objective of this REP is to reduce employee exposures to safety related hazards in the Automotive Parts Supplier Industry.”

As a result of the REP, most automotive supply manufactures located in the Southeast can expect a comprehensive, wall-to-wall OSHA inspection within the next two years.  The only way these automotive supply manufacturers can avoid such an inspection is if they were already the subject of a comprehensive OSHA inspection during the preceding two years, or if they were mistakenly identified as an automotive supply manufacturer under NAICS classification code –  3663XX.

OSHA Area Offices have started to send letters notifying automotive supply manufacturers about the REP, as well as common causes of occupational injuries in the industry—machine guarding, lockout/tagout (LOTO), and electrical hazards.  These topics will also be the primary focus of inspections under the enforcement program.  The automotive supply manufacturers receiving the letter will be at the beginning of the inspection cycle, and should take steps now to prepare for OSHA’s knock on the door.

Recommended Steps to Prepare:

  1. Ensure injury and illness recordkeeping forms are current, accurate, and ready to produce to OSHA.
  2. Review written programs to confirm they are up-to-date, compliant, and consistent with what is happening on the plant floor.  Focus on LO/TO, including the requirement to conduct annual LO/TO certifications.
  3. Certify employee training is current, and fill in any gaps as needed.
  4. Conduct regular walkthrough inspections to affirm employees are following company policies and training.
  5. Consider having a third-party safety audit conduct conducted, preferably under the protection of the attorney-client privilege.

Here is a copy of the Auto Parts Industry Emphasis Program directive.  Please contact us with questions about this new emphasis program.

OSHA Forecast – 5 Important OSHA Issues to Monitor in 2014

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By the national OSHA Practice Group at Epstein Becker & Green

As we closed the book on 2013 — a truly remarkable year of OSHA enforcement and regulatory activity — we look to the future, and think about what to expect from OSHA in 2014.  Over the next couple of weeks, we will roll out what we believe are the 5 most significant OSHA developments to monitor in 2014.

If you are interested in how accurate our past predictions have been, take a look at these articles from December 2011 forecasting five OSHA developments for 2012 and from December 2012 predicting three developments from OSHA in 2013.

Without further ado, here are the 5 OSHA-related developments you should anticipate in 2014, so says the collective wisdom of the national OSHA Practice Group at Epstein Becker & Green:

1.      A Busy OSHA Rulemaking Docket

Although OSHA enforcement has reached levels never seen before by every measure, rulemaking activity under the current Administration has been slow.  During President Obama’s first term, OSHA identified numerous rulemaking initiatives in its periodic Regulatory Agenda updates, including rules for combustible dust, Crystalline Silica, Beryllium, and an Injury and Illness Prevention Program (I2P2) ruleAll of these proposed rules, however, missed important rulemaking deadlines or were completely set-aside.  We expect that to change in 2014 and for the balance of this Administration, as the OSHA leadership team will strive to leave their legacy.

Just as we saw OSHA deemphasize rulemaking in the year leading up to the 2012 Presidential election, we are already seeing signs of a typical post-election, second term, aggressive rulemaking calendar from OSHA.  The first sign of the new rulemaking push could be seen in speeches by David Michaels, the Assistant Secretary of Labor for OSHA, who characterized the proposed I2P2 rule as his and OSHA’s “highest priority.”  Second, OSHA recently issued its Fall 2013 Regulatory Agenda, which, as we expected, returned several rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar.  Finally, OSHA has also introduced new rules, such as a proposed rule to require employers to proactively report to OSHA injuries and illnesses, not just record them on the 300 Log.  Check out our article about a burdensome new Injury & Illness Reporting Rule advanced by OSHA.  Other important rules in the proposed or pre-rule stage to monitor in the coming year include:

2.      OSHA Will Focus on Temporary Worker Safety

The treatment of temporary workers is expected to become more significant as the Affordable Care Act (“ACA”) is implemented, particularly when the “Employer Mandate” kicks in.  The ACA will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week.  This will result in employers using more part-time workers and hiring more contractors; i.e., workers who will not be counted towards the 50-worker minimum for ACA coverage.  Both qualities are commonly associated with “temporary workers.”

With an expected increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014, and has already launched a Temporary Worker Initiative.  OSHA’s stated goals for the Temporary Worker Initiative are to:

  • Protect temporary workers from workplace hazards;
  • Ensure staffing agencies and host employers understand their safety & health obligations; and
  • Learn information regarding hazards in workplaces that utilize temporary workers.

To achieve these goals, OSHA is developing outreach materials (such as fact sheets and webpages), and will use a combination of enforcement and training, but based on OSHA’s track record, we expect this will involve mostly enforcement.  OSHA’s director of enforcement programs already issued a memorandum to its Regional Administrators instructing them to increase efforts to investigate employers’ use and protection of temporary workers.  This side of the Temporary Work Initiative is already showing results.  In the last quarter of FY 2013 alone, OSHA issued citations at 262 worksites where temporary workers were allegedly exposed to safety and health violations.  Additionally, OSHA has conducted more than twice as many inspections of staffing agencies this year as it did last year.  This trend will undoubtedly continue in 2014, so it is critical for host employers and staffing agencies to understand the dividing line of responsibility for addressing hazards to which temporary workers are exposed.

3.      Hazard Communication Comes Into Focus

December 1, 2013 marked the first key implementation deadline of OSHA’s Hazard Communication standard, which was recently amended to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals. Continue Reading

Webinar Recording: Preparing for and Managing an OSHA Inspection at a Grain Facility

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On Tuesday, February 11th, 2014, in conjunction with the Grain Journal, Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green, delivered a webinar focused on “Preparing For and Managing an OSHA Inspection at a Grain Handling Facility.”  The 90-minute webinar, including a Q&A session, was recorded, and the Grain Journal has made the recording available online.

While this briefing touched on some unique enforcement issues at grain handling facilities, the background information about OSHA inspections and the strategies and recommendations are applicable across all industries.

The February 11th webinar about preparing for and managing an OSHA inspection was particularly important now, because OSHA has increased enforcement to levels never seen before, from huge increases in the numbers of inspections, civil penalties, and citations characterized as “willful” or “repeat,” to more criminal referrals.  OSHA has also introduced more aggressive strategies during inspections, creating a minefield for employers across all industries.  The grain industry in particular, however, has been under a unique level of scrutiny.  The consequences of an employer in the grain industry being caught unprepared for an OSHA inspection, therefore, are more dire now than ever.

Topics covered in the webinar:

  • Employers’ Goals for an OSHA inspection
  • Steps employers should take before OSHA begins an inspection
  • Employers’ and employees’ workplace inspection rights
  • Stages of OSHA inspections, with tips to manage each stage.

The recording includes an audio broadcast with a video of the accompanying PowerPoint presentation.  Here is a link to the recording of the Preparing for and Managing an OSHA Inspection Webinar.

This was the third OSHA law briefing in a series of webinars for the grain industry in conjunction with the Grain Journal.  The first webinar in the series, presented in September 2013,  was entitled “New OSHA Sweep Auger Enforcement Policies… How They Will Affect You,” and the second, delivered in December 2013, was entitled “Railcar Fall Protection: What OSHA Requires of Grain Elevator Operators.”