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. Fitzwater denied 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.

On January 13, 2017, the Occupational Safety and Health Administration (“OSHA”) issued non-binding recommendations to aid employers with creating new or improving existing workplace anti-retaliation programs.  OSHA’s recommendations apply to all public and private employers that are subject to the 22 whistleblower protection statutes that OSHA enforces.[1]

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
  • Program oversight

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.

[1] 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.

Federal Guidance for Employers and Workers on Exposure to Zika VirusThe 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.

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.

Valerie Butera
Valerie Butera

In a recently updated directive to Regional Administrators and State Plan Designees from Dr. David Michaels, Assistant Secretary of Labor for OSHA, the categories of small businesses exempt from programmed health and safety inspections changed.

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
  • Marinas
  • 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
  • Retail bakeries
  • 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
  • Veterinary services

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.

Since OSHA’s revised fatality and severe injury reporting rule went into effect on January 1, 2015 (see related story), employers have been deeply concerned that the agency would use information contained in Rapid Response Investigation Reports (RRIs) — required by OSHA in response to approximately 50% of the reports made this year — as the basis for issuing citations and fines.  This concern stems from the fact that when OSHA finds an employer’s RRI unsatisfactory, such as where the employer merely blames the victim or fails to provide what the agency determines is an adequate plan to address identified hazards, OSHA may determine that an inspection is in order.

Late last week, in an interview with Business Insurance Magazine, Assistant Secretary of Labor for OSHA, Dr. David Michaels, clarified that OSHA has never used information contained in a RRI to justify a citation or fine and it never will.  Dr. Michaels emphasized OSHA’s goal that employers feel confident that they can communicate openly with OSHA without repercussions, and that the agency is developing an official policy providing assurance that RRI information will not be used in issuing citations.  Rather, OSHA explained, if the agency chooses to inspect an employer’s workplace in relation to a RRI that the employer submitted, OSHA will use information gathered during the inspection, rather than information included in the RRI, to determine whether citations should be issued.

This move may have been motivated in part by OSHA’s concern that employers are underreporting injuries that should have been reported under the new rule.  The rule requires all employers to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye.  A fatality must be reported within 8 hours.  An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.  OSHA anticipates receiving approximately 12,000 reports under the new rule by the end of the year, far less than agency officials believe should have been filed.  Issuing an official policy reassuring employers that submission of incident information in RRIs will not result in citations and fines could encourage more employers to come into compliance with the new reporting rule.

Valerie ButeraOSHA has employed many creative strategies to maximize its enforcement efforts during the Obama administration.  One such tactic involves scrutinizing employers with multiple worksites (retailers are a particularly easy target), sending compliance officers to inspect one of the worksites, issuing citations, and then visiting the employer’s other worksites, identifying the same problems found in the first worksite inspected, and issuing repeat citations to the employer based on the citation issued at the original worksite.  This approach gives OSHA significant bang for its buck, not only creating the opportunity to issue more citations by inspecting multiple facilities, but also making it possible for the agency to issue costly repeat citations, which carry fines as much as ten times higher than the current limit on citations classified as serious.

This is what happened to Dollar Tree Stores Inc. (Dollar Tree), which recently entered into a corporate-wide settlement agreement with OSHA to resolve citations arising from 13 different inspections – many involving blocked emergency exits, obstructed access to exit routes, electrical equipment, and improper storage of merchandise.  The settlement applies to some 2,400 Dollar Tree stores throughout the United States subject to regulation by Federal OSHA, but state plans having Dollar Tree stores located in their jurisdiction have been strongly encouraged to adopt the parameters of the settlement agreement as well.

Dollar Tree must pay $825,000 in fines to resolve the citations, but that is just the beginning.  In addition, the retailer must provide immediate safety training in its stores in a manner that all employees are able to comprehend, abate the issues identified in the inspections as quickly as possible, issue a newsletter regarding health and safety issues to its employees at least quarterly, submit to multiple safety audits at stores selected by OSHA, and quickly address any issues identified in the audits.

Dollar Tree must also put a number of additional administrative and engineering controls in place, but what is perhaps the most onerous element of the agreement is that it requires the employer to adopt a safety and health program focusing on the core elements included in OSHA’s Safety and Health Program Management Guidelines (Guidelines).  The Guidelines were originally published in 1989, but major revisions have recently been published and OSHA is welcoming comments on the new version through February 15, 2016.

Dollar Tree must design a program that focuses on the core elements set forth in the 1989 Guidelines, as the revised version has not yet been finalized.  Specifically, the retailer must: (1) demonstrate its commitment to workplace health and safety; (2) involve employees in the safety and health program; (3) identify health and safety hazards; (4) control health and safety hazards; (5) provide education and training for all employees related to the safety and health program; and (6) evaluate the safety and health program.  Essentially, the settlement agreement requires the employer to create a culture of safety throughout the organization.  Although Dollar Tree is required to create a program addressing all of these elements, the Guidelines are not prescriptive.  OSHA recognizes that every business is different and offers a non-exhaustive list of possibilities that employers could choose from in creating a safety and health program that comports with every element of the Guidelines.

Employers should expect OSHA to more frequently demand the incorporation of the Guidelines in future settlement agreements.  The agency has publically announced that adoption of the Guidelines and the creation of a safety culture is a top priority.

So what actions can employers take now?

  • If OSHA has already issued repeat citations to your organization for alleged violations at multiple locations, consider discussing with counsel whether working toward achieving a corporate-wide or regional settlement is a good option for your business. If, as anticipated, OSHA raises fines by about 80% this year (see related story), and your business continues to accumulate citations, those citations could become increasingly more costly in the coming months and could be far more difficult to settle as OSHA will have increased bargaining power once the fines are raised.
  • Review the proposed revisions to the Guidelines and submit comments regarding their strengths, weaknesses, and potential impact on your business.
  • Review your organization’s safety and health programs and consider taking proactive measures to create a program that includes the elements of the guidelines. Although an initial administrative and financial investment will likely be required, creating a safety culture usually pays dividends — improving worker safety and morale, decreasing workers’ compensation costs, and decreasing the possibility of receiving OSHA citations.

In one of the news stories on Employment Law This Week – Epstein Becker Green’s new video program – EBG attorney George Whipple details OSHA’s recently increased focus on the health care and nursing care industries. The agency’s fines have historically been very low, but recently OSHA cited medical patient transportation company LifeFleet for several violations totaling more than $235,000. See below to view the episode or read more about how to stay compliant and avoid heavy fines.

The Occupational Safety and Health Administration (“OSHA”) recently intensified its scrutiny of the health care and nursing care industries. On June 25, 2015, the agency announced a new enforcement initiative targeting inpatient health care and nursing care facilities. But this increased scrutiny of the health care and nursing care industries does not end there—OSHA is spreading its enforcement reach to other types of health care entities.

Recently, OSHA cited LifeFleet LLC, an Ohio medical patient transportation company, for training shortfalls and bloodborne pathogen violations. OSHA alleged multiple violations, including several costly willful violations, and is seeking fines totaling nearly $236,000—a notably large amount. Typically, the fines associated with OSHA citations are very low, unless they are associated with fatalities. There were no fatalities in this case.

In discussing the magnitude of the fines against LifeFleet, OSHA’s Cleveland Area Office Director Howard Eberts said, “Failing to protect workers from pathogens that can cause life-threatening diseases is unacceptable. As a medical service provider, LifeFleet should be setting the standard in employee protection – not ignoring it.”

What does this mean to health care and nursing care employers? OSHA is targeting all health care and nursing care facilities, not just inpatient facilities. The agency is sending a clear message to the health care and nursing care industries in issuing citations carrying unusually heavy fines.

How to Prepare

Here are a few action steps that employers can take right now to prepare for an OSHA inspection:

  • Conduct an internal OSHA compliance audit with the assistance of knowledgeable counsel to maximize the basis for the assertion of attorney client privilege as to the audit as in furtherance of providing legal counsel on OSHA compliance. (Remember, if an internal audit is conducted without the aid of outside counsel, the audit results can be subpoenaed by OSHA and used as a guide to potential violations at the facility.) The cost of defending OSHA citations can easily be hundreds of thousands of dollars. The cost of conducting an internal audit and addressing hazards before an OSHA inspection is trivial by comparison.
  • Review all health and safety training programs. Ensure that all employees have been thoroughly trained—and have received refresher training, when appropriate—on all aspects of the facility’s health and safety policies and that they can demonstrate that they understood the training. It is advisable to conduct a quiz after each training session in order for employees to demonstrate their comprehension of the training and to keep quiz results and training attendee lists on file.
  • Consult with an OSHA attorney regarding preparations for an OSHA inspection. Most health care and nursing care employers have never experienced an OSHA inspection (LifeFleet, for example, had never been inspected before) and may not be aware of strategies that can be used to minimize work disruption during an inspection and reduce the likelihood of receiving an unwarranted citation.