Signs that OSHA Priorities are Shifting Under the Trump Administration?

There are new developments related to OSHA’s Electronic Recordkeeping Rule and the Volks Rule.  As a reminder, the Electronic Recordkeeping Rule requires certain employers to electronically file their OSHA recordkeeping data with OSHA as well as heightens scrutiny related to both drug testing and safety incentive programs.  The Volks Rule essentially reversed the decision held in AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012) (the “Volks Decision”) that limited OSHA’s ability to cite recordkeeping violations to six months.

The Electronic Recordkeeping Rule has been highly controversial.  There are two pending litigations related to the rule currently – one in Texas and one in Oklahoma.  In a recent filing in the Texas case, both OSHA and industry plaintiffs have agreed that the Court should consider last minute motions filed by the Obama Administration to be moot.  The Obama Administration’s motions were asking the Court to find in favor of OSHA on the merits of the drug testing and safety incentive provisions of the rule.  This new filing certainly backs off of the Obama Administration’s defenses to the litigation that were previously raised.  Could this be a sign that the Trump Administration is going to back off of this rule in whole or part in an effort to settle the pending litigations?

The Volks Rule has now come under attack by a member of the House of Representatives.  Rep. Bradley Byrne (R-Ala.), the chairman of the House Education and the Workforce’s Subcommittee on Workforce Protections, introduced resolution (H.J. Res. 83)  on Feb. 21.  Representative Byrne is attempting to use the Congressional Review Act (“CRA”) to revoke the rule that was issued on December 19, 2106 .  The CRA process empowers Congress to review new federal regulations issued by government agencies roughly within 60 days of their issuance (there can be exceptions to this timing).  By passing a joint resolution, Congress can overrule a regulation.  This process was only done successfully once before and that was to overturn an OSHA regulation related to ergonomics in 2000.

Stay tuned to our blog….it’s going to be a very interesting time!

 

OSHA Releases “Recommended Practices for Anti-Retaliation Programs”

Last week OSHA announced the release of its “Recommended Practices for Anti-Retaliations Programs.”  The publication is “intended to assist employers in creating workplaces that are free of retaliation … This document is advisory in nature and informational in content.  It is not mandatory for employers, and does not interpret or create legal obligations.”  Another caveat is that “This guidance is not intended to advise employees about their rights or protections under any whistleblower statute enforced by OSHA or any other government agency.”

OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of 22 federal statutes protecting employees against retaliation for raising health, safety, and potential violation concerns.  The recommendations are offered as a framework for employers to establish an anti-retaliation program.

The “Five Key Elements to an Effective Anti-Retaliation Program” are listed as:

  1. Management leadership, commitment, and accountability
  2. System for listening to and resolving employees’ safety and compliance concerns
  3. System for receiving and responding to reports of retaliation
  4. Anti-retaliation training for employees and managers
  5. Program oversight

Each of the five elements is addressed.  Retaliation is explained and examples are given which range from firing an employee, to reassigning an employee to a less desirable position, or even ostracizing an employee.  Steps are given on how to implement an anti-retaliation program, including the employer’s commitment and involvement from the CEO on down to the employee.  The full text of the Recommended Practices for Anti-Retaliation Programs can be read here.

OSHA Penalties Go Up…Yes, Again

In August 2016 we reported on the substantial increases to OSHA fines for violations of safety and health regulations as part of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. (Sec. 701 of Public Law 114-74).  This law allowed OSHA a one-time “catch-up” adjustment for civil penalties followed by annual increases in penalties based on the Consumer Price Index. The “annual inflation adjustment” is required to be published in the Federal Register no later than January 15th each year. On January 18, OSHA published the 2017 annual inflation adjustment for OSHA penalties.

Based on the Consumer Price Index for the stipulated time period, the 2017 annual adjustment for OSHA penalties is marginally over 1%.  See Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2017, 82 Federal Register 11 (January 18, 2017), pp. 5373-5387.  The final rule became effective on January 13, 2017.  As a result, increased penalties will apply to any penalty assessed after this date.

The 2017 maximum penalties are as follows:

  • Other-than-Serious: $12,675
  • Serious: $12,675
  • Repeat : $126,749
  • Willful: $126,749

OSHA published the following table in the Federal Register which should help to eliminate any guesswork regarding the level of penalties to be levied based on the date of the violations and when the penalty was assessed.

Violations occurring

 

 Penalty assessed  Which penalty level applies
On or before November 2, 2015

 

On or before August 1, 2016 Pre-August 1, 2016 levels
On or before November 2, 2015

 

After August 1, 2016 Pre-August 1, 2016 levels
After November 2, 2015

 

After August 1, 2016 but on or before January 13, 2017

 

August 1, 2016 levels
After November 2, 2015

 

After January 13, 2017 January 13, 2017 levels

Additionally, in response to criticism from the North Carolina Department of Labor and the Kentucky Labor Departement OSHA clarified that it expects State Plans to increase their maximum penalty amounts to align with Federal OSHA. Specifically, OSHA stated

[A]ll State Plans must increase their maximum and minimum penalty levels to be at least as high as OSHA’s initial catch-up maximum and minimum penalty levels… and must thereafter increase these maximums and minimums based on inflation.

* * *

OSHA will assist the State Plans to make these necessary changes occur. OSHA’s position has been and continues to be that State Plans must have maximum and minimum penalties that are at least as effective as OSHA’s.

82 Fed.Reg. 11 at p. 5375-76.

The full text of the rule can be read here.

Farewell Dr. Michaels

Dr. David Michaels, the Assistant Secretary for OSHA, announced that today, January 10th, would be his last day with the agency.  He will be returning to academia at George Washington University beginning January 17th.  And, on this last day, he continued what has been a very aggressive regulatory agenda by announcing that he was accepting a coalition of unions’ petition for the creation of an OSHA standard related to workplace violence in healthcare.  See the petition, filed in July 2016, here:  Petition.  What does this mean?  Perhaps nothing.  Come January 20th, there will be a new administration with new political appointees heading OSHA.  In addition, the establishment of a new regulation is a very slow process.  However, as noted in our blog last month, California has already implemented a new rule related to workplace violence in healthcare that takes effect April 2017 and the unions are likely to try to continue to push this agenda.  If you are an employer in healthcare, keep this one on your radar until it is clear what path it is likely to take.

In the meantime, Jordan Barab, who is currently the Deputy Assistant Secretary for OSHA, will begin acting as the Assistant Secretary for OSHA until January 20th.  After that date, stay tuned, it’s likely to be an interesting time for OSHA.

 

 

Are You Ready for California’s Workplace Violence Prevention in Health Care Rule?

By April 1, 2017, all employers in California operating in the following areas will be required to comply with Section 3342, the Workplace Violence Prevention in Health Care rule:  health care facilities; home health care programs; drug treatment programs; emergency medical services; and outpatient medical services to correctional and detention settings.  This rule is far more expansive than Federal OSHA’s guidelines for the Prevention of Workplace Violence in Health Care settings.  Here are some highlights of the new rule:

  • Requires a written workplace violence prevention plan.  This can be incorporated into the Injury Illness Prevention Plan (IIPP) that is currently required in California.  Required elements are:
    • Names or job titles of people responsible for plan implementation;
    • Procedures for the active involvement of employees in developing the plan;
    • Methods for coordinating implementation of the plan with other employers whose employees work in the same facility, service or operation;
    • Procedures for obtaining assistance of law enforcement during all work shifts;
    • Procedures for accepting reports of workplace violence from employees, including anti-retaliation provisions;
    • Procedures to ensure compliance with the plan;
    • Procedures for communicating with employees about workplace violence matters;
    • Procedures for training employees on workplace violence;
    • Assessment procedures to identify risk factors for workplace violence;
      • There are 9 elements under this requirement, some of which may prove difficult, such as the requirement for physical barriers between employees and persons at risk of committing workplace violence – certainly a difficulty when treating patients.  For home health care, there is a requirement for assessment of environmental risk factors as well that could prove very difficult for an employer to implement.
    • Procedures to identify patient specific risk factors, such as:
      • patient’s mental status, medications, history of violence, disruptive or threatening behavior- another potentially difficult portion of the rule for many medical providers who may not have a full history at the time of accepting a patient for treatment or that may have mandated requirements for accepting patients regardless of the patient’s past history.
    • Procedures to correct workplace violence hazards in a timely manner;
      • There 10 elements under this provision.  Some of the themes under this provision relate to staffing levels at the facility.  What is not answered is whether compliance with state regulations related to staffing equates to sufficient staffing levels or what metric would be considered adequate.  Additionally, there is a requirement for security personnel to be specifically present to maintain order and to respond to workplace violence.  What is not clarified is whether these security personnel will be expected to respond to patients who are exhibiting violence or just non-patient violence.
    • Procedures for post-incident response and investigation.
  • Maintenance of a Violent Incident Log – regardless of whether an injury occurs.  This provision specifically requires an employer to NOT maintain certain personal identifying information in such logs, i.e. social security numbers, addresses, telephone numbers, etc.
  • Annual Review of the plan.
  • Training employees annually on the plan.
  • Reporting to the Division (CalOSHA) any use of physical force against an employee regardless of whether an injury occurs.  If there is an injury or use of a weapon, the report must be made within 24 hours.  If there is no injury or use of a weapon, the report must be made within 72 hours.
  • Records to be maintained include:
    • Records of workplace violence hazard identification, evaluation and correction;
    • Training records to be maintained for one year;
    • Records of violent incidents shall be maintained for five years;
    • All of these records shall be given to the Division upon request and to employees and their representatives upon request.

Whew….what an exhaustive list!  If you are covered by this new rule, I encourage you to read it in its entirety.  There are many potential pitfalls in trying to comply with the rule.  But, never fear, there are approximately 17o pages of rationale for the rule contained in the Standard Board’s Statement of Reasons to help guide employers…or you can always call one of the workplace safety and health lawyers at Jackson Lewis for assistance.

 

Happy Holidays from OSHA…Recordkeeping Violations Continue for 5 Years

As a parting gift, OSHA has issued one of its last final rules for this administration, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.” 81 Fed. Reg. 91792 (December 19, 2016). The final rule amends the OSHA recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation. The duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so. The final rule revises § 1904.29(b)(3) to state:

How quickly must each injury or illness be recorded?  You must enter each and every recordable injury or illness on the OSHA 300 Log an don a 301 Incident Report within seven (7) calendar days of receiving information that the recordable injury or illness occurred. A failure to record within seven days does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire record retention period described in § 1904.33.

Id. at 91810. (emphasis added).

OSHA essentially disregards the Occupational Safety and Health Act’s (OSH Act) six-month statute of limitations and the final rule allows OSHA to cite employers for such recordkeeping violations for up to six months after the five- year retention period expires. The agency’s initiative stems from a 2012 federal appeals court ruling in which a three-judge panel held that, under the OSH Act’s Section 9(c) statute of limitations provision, OSHA had no authority after six months from the date a workplace injury or illness must be recorded to cite an employer for not recording the incident. AKM LLC v. Sec’y of Labor (Volks II), 675 F.3d 752 (D.C. Cir. 2012). The Court in Volks II concluded that “[n]othing in the [OSH Act] suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-keeping violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.” Id.

Despite such a clear and unambigious holding in Volks II, OSHA issued a final rule revising § 1904.29 to clarify that a discrete record-keeping violation can continue during the 5-year retention period. The final rule is effective January 18, 2017.

OSHA Requests Information on Prevention of Workplace Violence in Healthcare and Social Assistance

In the face of mounting evidence of the widespread extent of workplace violence in the healthcare and social assistance sector, OSHA announced in the Federal Register on December 7th, 2016, that it is assessing the need for “a standard aimed at preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients or clients.”  The workplaces and professions affected are numerous – examples include: psychiatric facilities, pharmacies, ERs, and residential facilities; physicians, nurses, aides, social and welfare workers, home healthcare workers, security and maintenance workers.  The Agency has scheduled a public meeting for January 10th in Washington, DC. and has issued a Request for Information (RFI) with comments due on or before April 26, 2017.

Data from the Bureau of Labor and Statistics (BLS) Survey of Occupational Injuries and Illnesses shows that in 2014 workers in the Health Care and Social Assistance sector (NAICS 62) suffered workplace-violence-related injuries over 4 times higher than workers in the private sector.  Other statistics for this sector mentioned in the Federal Register include:

  • Psychiatric hospitals have incidence rates over 64 times higher than private industry
  • Nursing and residential care facilities have rates 11 times higher than private industry
  • Verbal abuse was reported by 42.8 % of respondents in a survey (Jayaratne et al., 1996)
  • In 2014, 79% of serous violent incidents reported by employers in healthcare and social assistance settings were caused by interactions with patients (BLS, 2015, Table R3, p 40)
  • 14 fatalities in 2014 and 10 fatalities in 2013 were homicides

The Agency believes these numbers are probably low for various reasons, such as a reluctance to report incidents of workplace violence, intentional/unintentional underreporting by employers, and questions about whether or not the types of injuries experienced meet OSHA’s criteria for reporting.

OSHA has provided guidelines aimed at protecting healthcare and social assistance workers since 1996.  In 2015 it released its most recent version.  Although the guidelines are comprehensive and detailed, they are guidelines and therefore not mandatory or enforceable.  Currently, OSHA has to rely on the General Duty Clause of the OSH Act to cite an employer.

The RFI is restricted to workplace violence occurring in the healthcare and social assistance sector where “workplace violence is recognized as an occupational hazard” and which “can be avoided or minimized.”  The Agency recognizes that there is a unique relationship between care providers and their patients/clients which would seem to contradict the notion that healthcare and social assistance workers experience such high levels of workplace violence.  OSHA also points to the job growth in this sector which BLS predicted would “account for almost a third of the projected job growth from 2012 to 2022.”

OSHA is seeking answers to specific questions in the RFI to help it assess the need for a standard.  These questions are set out in seven sections.  OSHA seeks answers to questions about things such as the frequency of incidents of workplace violence, where they occur and to whom, the common risk factors, what current steps are helping, and the cost and feasibility involved.

On its website, OSHA “refers to “workplace violence” as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.”  However, OSHA has said in Question III.3 that it “has no intention of including violence that is solely verbal in a potential regulation.” Additionally, although OSHA identifies four types of workplace violence based on the relationship between the perpetrator and the victim, the RFI is limited to Type II which covers customer/client/patient violence.  It is also limiting its assessment of workplace violence risk to BLS’s category “Intentional Injury by Other Person” as opposed to “Unintentional or Intent Unknown.”

To read more, or find out how to submit comments and additional materials, click here.

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.

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