After a year of OSHA’s promises that an online form for reporting work-related fatalities and severe workplace injuries was “coming soon,” the agency finally unveiled the form on its website on December 24, 2015.  The online form is one of three options that employers can use to fulfill updated fatality and severe injury reporting requirements, which went into effect on January 1, 2015 (see related story).  Employers also have the options of calling the OSHA office nearest to their worksite or calling the OSHA 24-hour hotline at 1-800-321-6742 (OSHA) to make a report.

The updated reporting 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.

No matter the option an employer chooses to use in making a fatality or severe injury report, the employer must be prepared to inform OSHA of the following information:

  • business name;
  • names of employees affected;
  • location and time of the incident;
  • brief description of the incident;
  • additional information relevant to the incident;
  • the number of fatalities and/or injuries;
  • the object or substance that have caused the harm (if known);
  • whether the harm was a fatality, hospitalization, amputation, loss of an eye or some combination of these; and
  • the identity of a contact person and their phone number.

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.

One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is Dollar Tree’s $825,000 fine for OSHA violations.

Retail store Dollar Tree has agreed to a hefty fine as well as continual monitoring of its stores across the US. A third-party monitor will conduct audits on 50 stores over the next two years. This settles a wide range of complaints arising from 13 different OSHA inspections. The agency is increasingly using this tactic of issuing repeat citations for the same violations at different company worksites. This could have a much bigger impact beginning next year, when OSHA fines are set to rise about 80 percent.

See below to view the episode and read Valerie Butera’s recent post on this topic.

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.

As our regular readers know, I was recently interviewed on our firm’s new video program, Employment Law This Week.  The show has now released “bonus footage” from that episode – see below!

In the interview, I elaborate on my recent post, “Employers Beware: OSHA Fines Are on the Rise for the First Time in Twenty-Five Years.”

Thanks for watching – I’d love to know if you have any questions. (And what you think about these videos!)

 

Employment Law This Week – Epstein Becker Green’s new video program – has an interview with attorney Valerie Butera, editor of this blog, on OSHA’s first fine increases in 25 years.

Under a new bipartisan budget bill, OSHA civil penalties will rise next year to reflect the difference between the Consumer Price Index in 1990 and in 2015 – an increase of as much as 82%. After this “catch up” adjustment, the fines will keep pace with inflation moving forward. Valerie describes how employers can boost their safety programs and avoid OSHA citations.

See below to view the episode and read Valerie’s recent blog post “Employers Beware: OSHA Fines Are on the Rise for the First Time in Twenty-Five Years”

 

OSHA has been unable to increase the civil penalties it can impose when an employer is cited for a violation since 1990.  But that is all about to change.  Hidden within the Bipartisan Budget Act of 2015, signed by President Obama on November 2, 2015, is a provision requiring OSHA to significantly increase its civil penalties.  A one-time “Catch Up Adjustment” will be based on the percentage difference between the Consumer Price Index in October 2015 (to be released later this month) and October 1990 – resulting in a penalty increase of approximately 80%.  This means that the $7,000 cap on serious violations would grow to $12,600 and the $70,000 limit on willful and repeat violations would increase to $126,000.  Had OSHA applied this increase to fiscal year 2014 penalties, which totaled $143.6 million, the total would have jumped to $258.5 million.  After this initial adjustment is made, OSHA will be required to adjust penalties every year using the annual percentage increase in the Consumer Price Index.

Although the agency is not required to take the full penalty increase, it probably will.  OSHA has tried for years to convince Congress to increase the civil penalties the agency can impose when an employer is cited for a violation.  Most recently, on October 7, 2015, Assistant Secretary of Labor for OSHA, Dr. David Michaels, told a House subcommittee that the “most serious obstacle to effective OSHA enforcement of the law is the very low level of civil penalties allowed under our law, as well as weak criminal sanctions,” and that “OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.”

The budget changes go into effect July 1, 2016 and the increased penalties will take effect by August 1, 2016 in all states regulated by Federal OSHA.  The law does not automatically apply to states regulated by State Plans, but since State Plan programs must be at least as effective as Federal OSHA, State Plans are likely to increase civil penalties as well.

This change adds yet another powerful weapon to OSHA’s growing enforcement arsenal.  OSHA under the Obama administration has made liberal use of the General Duty Clause, weighted inspections, and new reporting requirements – all of which have resulted is OSHA inspections of industries and employers that it has never targeted before.  Now more than ever, employers should be prepared for a potentially costly encounter with OSHA.

Employers are well-advised to:

  • Ensure that safety programs are comprehensive and up to date
  • Ensure that employees receive all necessary safety training, can demonstrate that they understood the training, and that all training is well-documented
  • Assess the workplace for hazards and address any identified hazards as quickly as possible
  • Talk with union representatives or employees at non-unionized facilities about their safety concerns and address any bona fide concerns as quickly as possible

Taking these steps will demonstrate the employer’s commitment to safety and help reduce the possibility of receiving what soon will be very costly 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.

shutterstock_ebolaThe Ebola outbreak of October 2014 and the infection of health care workers treating infected patients in the United States  dominated the headlines and frightened the nation.  One year later, training and preparation for the next Ebola is fragmented and some nurses feel unprepared for the next pandemic disease.  The Department of Health and Human Services (HHS) designated a system of 55 hospitals nationwide to manage suspected Ebola cases, but all hospitals have the potential to encounter a patient infected with Ebola or other pandemic disease, just as Texas Health Presbyterian Hospital discovered last year when a patient infected with Ebola presented to its emergency department.  Subsequently, two of the hospital’s nurses contracted Ebola while attempting to provide lifesaving care to this patient.  OSHA did not penalize the hospital because it was one of the first facilities to provide care to a patient infected with the virus.  But it is entirely possible that OSHA could issue citations to hospitals that remain unprepared to safely respond to pandemic diseases now that a year has passed and engineering and administrative controls effective in reducing the spread of infectious diseases are now much more commonly known.

An independent investigation and a nurse’s subsequent lawsuit provide a glimpse into how lack of preparation and training contributed to the two nurses contracting Ebola at Texas Health Presbyterian Hospital.  The hospital admitted in a Congressional hearing that nurses had not received Ebola training.  And allegedly the supervisor of one of the infected nurses “Googled” protection gear before sending her in to treat the patient infected with Ebola.  The independent investigation concluded that the hospital was “not prepared to diagnose and manage a patient who came to their facility without a preexisting diagnosis of Ebola.”

OSHA does not yet have published infection control regulations (proposed rules are expected in 2016), but healthcare employers still face liability under OSHA’s existing bloodborne pathogen and tuberculosis regulations as well as under the General Duty Clause.  In its recent “Inspection Guidance for Inpatient Healthcare Settings,” OSHA references Centers for Disease Control and Prevention (CDC) guidelines including guidance for Isolation Precautions.  The CDC has also published updated guidance specific to Ebola on its website.

State Plans may include additional requirements.  Cal/OSHA, for example, mandates that employees receive live, in-person safety training – electronic training modules are prohibited.  OSHA has stated that the Cal/OSHA requirements for employees working with patients infected with Ebola “may provide useful guidance for protecting [health care] workers exposed to Ebola virus.”

Health care facilities should consider taking the following steps to improve employee safety when treating patients infected with Ebola and other pandemic diseases:

  • Follow published CDC recommendations regarding Ebola and the necessary health care provider protective measures.
  • Follow CDC recommendations to stock at least 12 to 24 hours’ worth of personal protective equipment (PPE) to protect medical providers against Ebola transmission. This should provide enough time for a hospital to arrange transportation of a patient potentially infected with Ebola to an official HHS assessment or treatment facility for continued care.
  • Conduct in-person training regarding infection control and include hands-on practice donning, using, and doffing of PPE. This training should include performing necessary job tasks while using the PPE. Test employee understanding of the training to ensure comprehension.
  • Evaluate additional engineering controls including enhancements to electronic health record software to ensure staff members are asking the necessary screening questions and that any critical answer is easily visible and communicated to other care providers.
  • Consult with counsel regarding the development and implementations of these and other workplace safety measures so that the health care facility is prepared if OSHA initiates an inspection.

As discussed in a previous post, OSHA recently intensified its scrutiny of the health care and nursing care industries.  In one recent example, OSHA cited a medical patient transportation company for training shortfalls and bloodborne pathogen violations and proposed fines totaling almost $236,000.  In discussing the magnitude of the citations, Howard Eberts, OSHA’s area director in Cleveland, made clear that “[f]ailing to protect workers from pathogens that can cause life-threatening diseases is unacceptable.”  Health care facilities should take heed and make sure that comprehensive precautions are put in place to promote a safe work environment for employees even in the most challenging situations — such as treating patients exposed to a pandemic disease.

 

 

 

 

 

 

 

The National Labor Relations Board (NLRB) last week issued its decision in Browning Ferris Industries (pdf) adopting new standards for determining when a company will be held to be the joint employer of another company’s employees, whether they are leased, temporaries or providing services under their primary employer’s contracts with customers.  My colleagues Allen B. Roberts, Steven M. Swirsky and D. Martin Stanberry explore the new standards and what they mean for employers  in an article published on Epstein Becker Green’s Management Memo.

While the Occupational Safety and Health Act’s definition of “employer” is not identical to the definition in the National Labor Relations Act, there can be no doubt that the NLRB’s Browning Ferris decision is likely to influence OSHA’s approach to inspections and citations involving temporary or contract employees.

When OSHA’s temporary employee initiative was announced in 2013, Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, declared that “Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee’s safety and health.  It is essential that both employers comply with all relevant OSHA requirements.”  Although inspections under the temporary employee initiative sometimes result in citations being issued to both the host employer and the staffing agency, more often than not, only the host employer is cited because it is perceived as having a greater ability to control or prevent the temporary employee’s exposure to a hazard.  Should OSHA adopt the reasoning of the Browning Ferris decision, this trend will surely change, significantly increasing staffing agencies’ exposure to OSHA citations even when the staffing agency had no control over the workplace or awareness of the hazard.

Similarly, contractors will face increased exposure to OSHA citations should OSHA follow Browning Ferris.  Under the agency’s multi-employer worksite citation policy, OSHA may cite an employer for hazards that other employers’ employees were exposed to when OSHA finds that the employer controlled the hazard, created the hazard, or was responsible for correcting the hazard.  Applying the reasoning of Browning Ferris to this policy could considerably expand the number of employers cited, treating multiple contractors as controlling employers regardless whether they had any real control over the hazards at the worksite.