Republican Congressmen Continues Information Demand on OSHA Joint-Employer Standard

Congressional leaders again have pressed the Department of Labor for information on the Occupational Safety and Health Administration’s potential guidance to OSHA investigators on determining if there is a joint-employer relationship between companies. To read the full article, written by Joseph Dreesen, click here.

OSHA Finally Issues Walking-Working Surfaces Rule

On November 17, 2016, OSHA issued a final rule revising and updating its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The final rule includes revised and new provisions addressing fixed ladders, rope descent systems, and fall protection systems. The rule also establishes requirements on the design, performance and use of personal fall protection systems in general industry. In addition, employers must now train employees on identifying and minimizing fall hazards, using fall protection systems and maintaining, inspecting and storing fall protection equipment.

The final rule allows employers to select the fall protection system that works best for their environment, instead of requiring the use of guardrail systems, which the current rule mandates. Employers now can choose from a range of accepted options, including personal fall arrest, safety new system, ladder safety systems, travel restraint and work position systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry.

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OSHA Wants Public Assistance with Leading Indicators Guidance

The next version of Occupational Safety and Health Administration’s annual voluntary guidance cataloging measures for improving safety and health in the workplace may include insights from the public. For the first time ever, OSHA wants assistance from the public to identify the “leading indicators.” To read the full article, click here.

Court Denies Preliminary Injunction Request in Legal Challenge to OSHA’s Electronic Recordkeeping Rule

In July 2016, several trade associations and others (“plaintiffs”) filed suit against OSHA challenging the agency’s anti-retaliation provisions in the final rule, Improve Tracking of Workplace Injuries and Illnesses (81 Fed. Reg. 29,624) (May 12, 2016). The legal challenge alleged the final rule exceeded OSHA’s statutory authority, violated the Administrative Procedures Act and the Occupational Safety and Health Act, and requested the Court to declare the final Rule unlawful and set it aside.

Additionally, the plaintiff’s also requested a nationwide preliminary injunction to permanently delay the effective date of the standard until a decision is reached in the case. Yesterday, the Court denied the plaintiff’s motion for a preliminary injunction on the grounds that the plaintiffs could not show irreparable harm would be incurred without an injunction or that an injunction was necessary to protect the public interest.

The impact of this decision is that employers will have to begin to comply with OSHA’s new rule, Improve Tracking of Workplace Injuries and Illnesses by December 1, 2016.  The “anti-retaliation” provisions set out in sections 1904.35 and 1904.36(b)(1) are effective December 1, 2016 and the remaining provisions pertaining to the electronic submission of recordkeeping information in section 1904.41 are effective January 1, 2017 with the first electronic submission due by July 1, 2017.

A decision on the merits of the legal challenge and the validity of the final Rule has not yet been made.


Workplace Law Under President-Elect Donald Trump: What to Expect

President-elect Donald Trump will assume office on January 20, 2017, with a Republican majority in both the Senate and the House of Representatives. While it is difficult to predict whether the new administration will be able to deliver on President-elect Trump’s campaign promises, we can expect significant policy and enforcement shifts.

To read the full article, written by multiple Jackson Lewis attorneys, click here.

Dr. Michaels To Leave OSHA in January

Dr. Michaels, an epidemiologist and professor at George Washington University School of Public Health, was appointed as the 12th Assistant Secretary of Labor for Occupational Safety and Health in December, 2009.  Having served seven years with OSHA, Dr. Michaels is the longest serving Assistant Secretary.

Dr. Michaels recently announced that he would be returning to George Washington University in January 2017.  It is unclear when his last day as the head of OSHA will be, however, he plans on returning before Inauguration day, Friday January 30, 2017.


OSHA’s 2016 Top Ten Violations

OSHA recently released its preliminary annual list of the top ten safety and health violations cited for fiscal year 2016. While not anticipated to change much, a more final list will be completed closer to the end of 2016.  In descending order, these are:

  1. Fall protection (Construction)1926.501 – violations are generally for failing to provide adequate fall protection to employees working at elevated heights.
  2. Hazard communication1910.1200 – violations are generally for lack of hazard communication program or inadequate training.
  3. Scaffolds (Construction)1926.451 – violations are generally for improper access to scaffolds and improper assembly, such a missing planking.
  4. Respiratory protection1910.134 – violations are generally for employees using respirators not being medically evaluated or properly fit tested.
  5. Lockout/tagout1910.147 – violations are generally for failing to have a machine specific LOTO procedure, not training authorized or affected employees and for failing to conduct periodic inspections of LOTO procedures.
  6. Powered industrial trucks1910.178 – violations are generally for failing to have forklift operators certified and unsafe use of a forklift.
  7. Ladders (Construction)1926.153– violations are generally for improper use of portable ladders and use of defective ladders.
  8. Machine guarding1910.212 – violations are generally for failing to have machines and equipment adequately guarded.
  9. Electrical wiring1910.305 – violation are generally for temporary wiring used in lieu of permanent wiring and inappropriate use of extension (flexible) cords.
  10. Electrical, general requirements1910.303 – violations are generally for failing to install electrical equipment properly or for having electrical panels blocked.

This list does not change significantly year-to-year. Over the past five years, the same violations have made the list with only slight variations in the order.  Although OSHA points out that this list is not an exhaustive list of the violations it sees, it believes that “[i]f all employers simply corrected the top 10 hazards, we are confident the number of deaths, amputations and hospitalizations would drastically decline.”

OSHA Quietly Issues Guidance on Incentive Programs, Disciplinary Programs and Drug-Testing Programs

On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In conjunction with the memorandum, OSHA also provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios on its website.

Revised section 1904.35 requires employers to establish reasonable procedures for reporting a work-related injury or illness and prohibits employers from retaliating or taking adverse action against employees for reporting work-related injuries or illnesses.

While not explicitly stated in the final rule, OSHA made clear in the rule’s regulatory history that the agency considered certain types of incentive programs, disciplinary programs and post-accident drug testing to deter employees from reporting work-related injuries or illnesses and would constitute a violation of the new provisions.  The new guidance issued last week explains the agency’s position in more detail and in some instances seems to be a reversal of earlier stated positions. OSHA states specifically, “the rule does not ban appropriate disciplinary, incentive, or drug-testing programs” and then outlines what appropriate programs would be according to OSHA.

Disciplinary Programs

According to OSHA, “the rule does not prohibit disciplinary programs. However, employers must not use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.”

OSHA provided several examples of instances of disciplinary programs that would violate section 1904.35(b)(1)(iv):

  • Automatically suspending an employee who reports a work-related injury.
  • Assigning employees points that have negative employment consequences for reporting a work-related injury.
  • Pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report. Here, OSHA would look to see if other employees are also disciplined for violating the same safety rule in cases where a violation of that safety rule does not result in any injury.
  • Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.

One of the examples provided by OSHA was an employer disciplinary program that would discipline an employee who is injured when he is stung by a bee for violating the company’s rule to “maintain situational awareness” and the employer only disciplines for violations of this safety rule when employees are injured. OSHA would consider this a violation of section 1904.35(b)(1)(iv).

On the other hand, an employer who disciplines an employee for by-passing a guard , contrary to the employer’s safety policies, even when that employee is injured would not be a violation of section 1904.35(b)(1)(iv).

OSHA also clarified that employers who discipline employees for not reporting work-related injuries “immediately” or “as soon as practicable” is permissible where employers allow sufficient time for employees to realize they have suffered a work-related injury. For example, an employee twists his ankle at work but does not immediately realize he is injured and the next morning his ankle is swollen and he reports his injury. Disciplining an employee for failing to report the injury “immediately” would violation section 1904.35(b)(1)(iv).  However, if this same employee waits a week once he realizes his ankle is swollen and he has suffered a work-related injury then disciplinary action in this case would not be a violation.

A key aspect for any employer disciplinary program will be consistency and whether the employer applies the policy consistently to all employees – those injured and not injured.

Incentive Programs

According to OSHA, “employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness.” Rather, OSHA recommends incentive programs that reward for employee participation in safety program activities and evaluations, completion of employee training, and safety walkthroughs and identification of hazards.

OSHA provides an example of a cash prize raffle for each month without a lost time incident. “If the employer cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violation section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury.”

 Drug-Testing Programs

OSHA appears to have slightly reversed course in the area of post-accident drug testing. Initially, the agency took the position that drug-testing in compliance with state and federal law or reasonable suspicion drug testing was permissible, but it was not clear that testing in compliance with worker’s compensation laws would also be permissible.  The agency has now made clear that “drug testing conducted under a state worker’s compensation law or other state or federal law” does not violate the new rule.

The memorandum does reaffirm the agency’s position that “the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” OSHA offers an example of an employee who reports a injury sustained as by-stander being drug tested – this would be in violation of the rule because the injury could not possibly have been caused by drug use.

In contrast, drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not be in violation of section 1904.35(b)(1)(iv) because the employees “conduct – the manner in which he operated the forklift – contributed to his injury, and because drug use can affect conduct.” “Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.”

In the final rule, OSHA indicated that only drug tests that can indicate impairment at the time of the injury or illness would be permissible. The only test capable of such a determination is an alcohol test.  However, in the memorandum, OSHA clarified that “OSHA will consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.  Therefore, at this time, OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.”

For further analysis on OSHA’s new guidance as it relates to employer drug testing programs please see a recent post by Kathryn J. Russo on the Drug & Alcohol Testing Law Advisor.