Representative George Miller (D-CA) recently reintroduced a bill (H.R. 1649) that would provide whistleblower protections to certain workers in the offshore oil and gas industry. The bill was first introduced in 2010 and again in 2011.Continue Reading...
Senator Patty Murray (D-WA) recently reintroduced a bill that would amend the Occupational Safety and Health Act of 1970. The proposed Protecting America’s Workers Act (“PAWA”) (S. 665) would expand coverage to more workers, increase whistleblower protections, significantly enhance the civil and criminal penalties issued against employers for violations, and would provide rights to victims and their family members during the investigation process.
Specifically, the proposed bill would expand OSH Act protections to include state, county, municipal and U.S. government employees. It would also expand protections to flight attendants and other private sector employees. In addition, the current version of PAWA would require a minimum penalty of $50,000 for a worker’s death caused by a willful violation, and would make felony charges available for an employer’s repeated and willful violations of the OSH Act that results in a worker’s death or serious injury.
The proposed bill would also update the OSH Act’s whistleblower protection provisions by incorporating administrative procedures adopted in similar whistleblower statutes, such as the Surface Transportation Act. The most significant changes would be increasing the statute of limitations period from 30 days to 180 days for filing a complaint with the U.S. Department of Labor and providing a private right of action to all complainants. It would further mandate that the DOL investigate all death or serious injury cases and would require that employers inform workers of their rights under the OSH Act. The bill would also give workers and their families a right to meet with DOL investigators.
Moreover, the proposed bill includes new provisions addressing multiemployer worksites. For example, the proposed bill would amend the general duty clause to expand protections to all workers on the worksite (and not just the employer’s employees), and would require DOL to issue regulations requiring a site-controlling employer to track all recordable injuries and illnesses, including those occurring among contractors and subcontractors. Further, the bill would clarify the employer’s responsibility to provide necessary safety equipment and personal protective equipment to their workers.
The proposed bill was referred to the Subcommittee on Health, Education, Labor, and Pension (“HELP”) on March 22, 2013. HELP will consider it before possibly sending it on to the House or Senate as a whole for a vote.
OSHA recently issued its long-awaited regulatory agenda. The agenda is designed to provide stakeholders with notice of what major regulatory initiatives the agency is planning and the projected timetables for those initiatives.
OSHA’s agenda is the first issued in several months by the agency and provides a glimpse into the regulatory priorities – in President Obama’s second term. The signature initiative of OSHA over the last four years has been its Injury and Illness Prevention Program (IIPP) rule. That rule has been under development for several years, but has yet to be released in any form or fashion to the public. The recently published regulatory agenda states that OSHA will initiate the SBREFA process in January of 2013 for the rule, with a Notice of Proposed Rulemaking to follow in December, 2013. Another major rulemaking – OSHA’s effort to propose a comprehensive standard regulating silica – is slated to be published in May, 2013.
Three other significant regulatory actions under development are listed as follows:
- Combustible Dust – Initiate SBREFA in October, 2013.
- Electric Power Transmission and Distribution – Issue final rule in March, 2013.
- Update Recordkeeping Rule regarding Reporting of Amputations/In-patient Hospitalizations – Issue final rule in May, 2013.
All stakeholders should continue to monitor progress on these and other OSHA initiatives as we continue to see a very active OSHA in the coming months and years.
Joining a growing number of states and localities across the country, Nevada has banned cell phone use while driving. Click here for the full story.
Click here to read this recent Jackson Lewis article on a new Connecticut law requiring health care employers to develop and implement plans, policies, and training programs to prevent and respond to workplace violence incidents. Putting aside the issue of whether such a law is preempted by the Occupational Safety and Health Act of 1970, health care employers in Connecticut should review the new law carefully and start analyzing to what extent they need to make changes to their existing workplace violence policies.
OSHA is 40 this year and the Agency is looking back on its history and "celebrating" its accomplishments. OSHA recently issued a timeline that stretches all the way back to December 29, 1970, when the Occupational Safety and Health Act was signed, and highlights Agency accomplishments up to the present.
Not surprisingly, the timeline is heavily populated by regulatory actions and standards issued by the Agency. Rules varying from asbestos, to grain handling, to Nationally Recognized Testing Laboratories are highlighted. Interestingly, the timeline highlights a non-federal OSHA rule as well - California's adoption of an ergonomics standard in 1997. OSHA does not mention that it finalized its own ergonomics standard toward the end of the Clinton Administration, which was later rescinded by Congress under the Congressional Review Act. OSHA also highlights the start of several voluntary compliance programs, such as its Voluntary Protection Program, its training and education grants, and the development of its safety and health program guidelines in 1989.
As for OSHA's recent accomplishments, the list includes a few, notably OSHA's proposed initiative to require employers to adopt an Injury and Illness Prevention Program. "I2P2" seems to continue to be OSHA's signature regulatory initiative, however, stakeholders are still waiting for the Agency to begin the Small Business Regulatory Enforcement Fairness Act process for the proposal and as the timeline attests, it has been almost a year since OSHA announced this initiative. The list does not include major enforcement initiatives issued recently, such as the Severe Violator Enforcement Program and OSHA's Administrative Penalty Increase Memorandum.
Stakeholders should check OSHA's timeline out -- it is worth the read!
A new state law makes it easier for the California Division of Occupational Safety and Health (Cal/OSHA) to classify workplace safety violations as “serious” for purposes of issuing citations and proposed penalties to employers. Assembly Bill 2774, signed by Governor Schwarzenegger in September 2010, broadens the definition of “serious violation” and establishes specific procedures for Cal/OSHA to create a rebuttable presumption that a “serious violation” exists at a worksite. According to Cal/OSHA, the law will “help strengthen the Cal/OSHA program, improve enforcement efforts and better protect California’s workers.”
Under the new law, Cal/OSHA can create a rebuttable presumption that a “serious violation” exists if it demonstrates that “there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.” This “realistic possibility” standard is looser than the California Labor Code’s previous requirement of a "substantial probability” of death or serious physical harm.
AB 2774 also expands the definition of “serious physical harm” to mean:
[A]ny injury or illness, specific or cumulative, occurring in the place of employment or in connection with any employment, that results in any of the following:
- Inpatient hospitalization for purposes other than medical observation.
- The loss of any member of the body.
- Any serious degree of permanent disfigurement.
- Impairment sufficient to cause a part of the body or the function of an organ to become permanently and significantly reduced in efficiency on or off the job….
The new law establishes specific procedures for Cal/OSHA to follow. Before issuing a citation alleging that a particular violation is serious, Cal/OSHA inspectors are directed to consider the following information:
- The training employees and supervisors have had related to preventing employee exposure to the hazard or similar hazards;
- Employer procedures for uncovering and controlling the hazard or similar hazards;
- Supervision of exposed or potentially exposed employees;
- Employer procedures for communicating with employees regarding its health and safety rules; and
- Any information the employer provides regarding the circumstances surrounding the alleged violative conditions, why the employer believes a serious violation does not exist, and why the employer’s actions were reasonable.
Under the law, Cal/OSHA may accomplish the above by presenting a form to the employer – at least 15 days before issuing a serious violation citation – essentially describing the alleged serious violation and requesting a response from the employer.
If Cal/OSHA establishes a presumably serious violation, the employer may rebut the presumption by presenting evidence that it “did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation.” This burden can be met by proving (1) that the employer took all steps a reasonable employer would take under the same circumstances, and (2) the employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as it was discovered.
California employers should be aware of this new law and the specific procedures established for Cal/OSHA inspectors to meet their burden of proving a serious violation. In addition, California employers should take note of the types of information and evidence available to rebut the presumption of a serious violation. This involves having strong training programs for employees and supervisors, systems to “find and fix” hazards, and understanding industry best practices for addressing hazards.
On Wednesday, July 21, the House Education and Labor Committee approved "H.R. 5663, The Robert C. Byrd Miner Safety and Health Act." While this bill is primarily focused on overhauling mine safety laws, one section would make drastic changes to the Occupational Safety and Health Act. If enacted, these changes will have a significant impact on employers across the country.
Some of the major changes that would occur if the legislation, as currently written, were enacted:
- The period for abating serious, willful, or repeated violations would not be stayed by the filing of a notice of contest by an employer;
- Civil penalties would be increased from $70,000 to $120,000 for repeat and willful violations and from $7,000 to $12,000 for serious and non-serious violations; and
- Employers could be subject to criminal penalties for violations of OSHA standards resulting in serious bodily harm, and criminal liability generally could extend to officers and directors of companies.
The bill also creates additional procedures for whistleblower protection and would allow a Section 11(c) complaint to be filed up to 180 days after an alleged violation occurs, as opposed to the current 30-day limitation.
Employers are encouraged to keep their eye on this legislation as it is considered by Congress and we will continue to keep you apprised of developments in this area.
Indiana Governor Mitch Daniels has signed into law the “Possession of Firearms and Ammunition in Locked Vehicles Law.” The law bars employers from adopting any rule or policy prohibiting employees, including contract employees, from storing firearms and ammunition out-of-sight in their locked vehicles. Effective July 1, 2010, the law applies only to persons who may possess a firearm or ammunition legally. It does not apply to the possession of a firearm, ammunition, or other device for which an individual must possess a valid federal firearms license issued under federal law (18 U.S.C. § 923).
In general, the gun law precludes employers in Indiana from adopting or enforcing any policy or rule that “prohibits, or has the effect of prohibiting, any employee, including a contract employee, from possessing a firearm or ammunition that is locked in the trunk of the employee’s vehicle, kept in the glove compartment of the employee’s locked vehicle, or stored out of plain sight in the employee’s locked vehicle.”
The law includes several broad exceptions, however. Specifically, it permits employers to ban the possession of a firearm or ammunition on school property, property that is being used by a school for a school function, or on a school bus. Employers also may prohibit employees from bringing firearms or ammunition on the property of:
- a child caring institution;
- an emergency shelter care child caring institution;
- a private secure facility;
- a group home;
- an emergency shelter care group home;
- a child care center;
- a penal facility;
- an approved post-secondary educational institution;
- a domestic violence shelter;
- a person’s residence; or
- a location in violation of federal law.
Property that either is subject to the United States Department of Homeland Security's Chemical Facility Anti-Terrorism Standards (issued April 9, 2007), and licensed by the United States Nuclear Regulatory Commission (under Title 10 of the Code of Federal Regulations), or is owned by a public utility that generates and transmits electric power or a department of public utilities also is exempt from the gun law. Finally, the law permits employers to ban the possession of a firearm or ammunition in an employee’s “personal vehicle” if the employee is a “direct support professional” who “works directly with individuals with developmental disabilities” and uses his personal vehicle to transport such individuals.
Employers in Indiana must take note of this new law and review their policies concerning the possession of firearms or ammunition on company property, including company-owned vehicles.
We will continue to keep you apprised of developments in this area.
Over the past three months, the media has been fixated on concussions in professional football players. Some of the National Football League’s top players – Ben Roethlisberger, Kurt Warner, Clinton Portis – have recently been sidelined for concussions sustained on the playing field. After Ben Roethlisberger of the Pittsburgh Steelers was held out for an important game against division rival Baltimore because he was experiencing exercise-induced headaches, Hines Ward, the team’s all-time leading receiver, suggested to the media that Roethlisberger should have played in the game, even if that meant lying to the team’s medical staff in order to obtain clearance.
As the media has focused on the issue of concussions in professional athletes, an interesting question has been raised: where is OSHA in all this? While some professional athletes may be “independent contractors” and not covered by the Occupational Safety and Health Act (OSH Act), many most assuredly are “employees” and their employers must take steps to protect them. The failure of employers to respond on their own to workplace injuries and illnesses was one of the key reasons that Congress passed the OSH Act in 1970.
In order for OSHA to regulate a hazardous condition in the workplace, it must first determine whether a “significant risk” of workplace injury or death exists from exposure to the hazardous condition. The risk of this injury or death is considered over a 45-year working lifetime under the OSH Act. It would be interesting for OSHA to examine – in all professional sports – what is the risk of developing a concussion or other serious head injury assuming a professional athlete were to be exposed to hazards over a 45-year period. The numbers could be eye-opening.
OSHA, of course, has been silent on the issue of concussions in professional sports. Perhaps the issue of injuries in professional athletes is too far outside OSHA’s comfort zone, believing its limited resources can be better used elsewhere. It is legitimate to question, however, the extent to which OSHA should be involved in this issue or whether Congress needs to create a new “Sports Safety and Health Administration” or “SSHA” to mandate athlete safety and health.
Click here for a Special Report analyzing concussions in athletes and steps professional sports franchises, colleges, universities, and public school systems across the country can take to address concussion management.
Employers may be required to provide seven days of paid sick time per year under a bill introduced in Congress. The measure, titled the Pandemic Protection for Workers, Families, and Businesses Act (H.R. 4092/S. 2790), was introduced by Representative Rosa DeLauro (D-Conn.) in the House and Senator Christopher Dodd (D-Conn.) in the Senate on the heels of another emergency paid sick leave bill proposed earlier. If passed, the Pandemic Protection Act would be a temporary law that expires two years from enactment.
Under the proposal, employees would be entitled to paid sick time off due to a contagious illness or to care for a child with a contagious illness. It seeks to contain the spread of H1N1 and other influenza strains by ensuring sick employees can stay home from work without financial sacrifice from loss of work.
The Pandemic Protection Act would require most employers with 15 or more employees to provide full-time employees with seven days of paid sick time to be used for the following reasons:
- The employee or his or her child is experiencing symptoms of a contagious illness, such as the 2009 H1N1 virus or other influenza-like illness, including time off for medical and preventive care;
- A health authority or health care provider has determined that the employee’s presence at work or the child’s presence in the community would expose others to a contagious illness; or
- The employee’s worksite or the child’s school, child care or early childhood program has been closed due to a contagious influenza-like illness.
Part-time employees would be entitled to a pro-rata share of paid sick days. Employees must have worked for their employer for 30 days before they are covered under the bill.
If the Act becomes law, employers’ existing paid time off (PTO) policies may need to be modified. According to the bill, employers who already provide seven days of paid sick leave that “may be used for the same purposes and under the same conditions as the purposes and conditions [covered in the legislation] shall not be required to provide additional paid sick time…” It is unclear what effect the legislation would have on PTO plans that allot a certain amount of time off without specifying the permitted purposes of use. The proposal also leaves unanswered the question whether an employee who has exhausted his or her PTO allotment would be entitled to paid leave for the reasons in the bill.
Regardless of the outcome of this paid sick leave measure, employers should develop and implement contingency plans to address widespread absences due to pandemic illness in the workplace.
Carrie Jabinsky drafted this blog post.
As concern over H1N1 and influenza-related illnesses continues to spread, legislation that would require employers to provide up to five days of paid sick leave per year to workers afflicted with influenza or other, similar contagious illness has been introduced in the U.S. House of Representatives. The bill applies to employers with 15 or more employees where workers comply with the employer’s directive to go home or stay home from work because of a contagious illness. The proposed legislation, titled the Emergency Influenza Containment Act (H.R. 3991), was introduced by House Education and Labor Committee leader Rep. George Miller (D-Cal.) and Workforce Protections Subcommittee leader Rep. Lynn Woolsey (D-Cal.).
If passed, the bill would apply to both full time and part time employees who are “directed” or “advised” to leave work or not come in “because the employer believes the employee has symptoms of a contagious illness, or has been in close contact with an individual who has symptoms of a contagious illness.” Contagious illness is defined in the legislation and includes “influenza-like-illnesses,” such as H1N1.
Covered employees would be entitled to an amount of paid sick leave calculated based on the employee's regular rate of pay and scheduled hours of work. Small employers and companies that already provide five or more paid sick days per year would be exempt from the bill’s requirements. The measure also would prohibit employers from firing, disciplining, or retaliating against workers who comply with the employer’s directive to stay home or not come to work.
The Emergency Influenza Containment Act may move quickly as a result of mounting concerns regarding influenza-related illnesses. The House Education and Labor Committee is expected to hold a hearing on the legislation during the week of November 16. The Emergency Influenza Containment Act would expire two years from enactment.
Carrie Jabinsky drafted this post.
President Barack Obama has announced he intends to nominate Professor David Michaels to be the Assistant Secretary of OSHA. Professor Michaels is the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C. If confirmed, Professor Michaels will join Acting Assistant Secretary of OSHA Jordan Barab in the political leadership of the safety and health agency.
In addition to his current position with George Washington University, Professor Michaels has a long history in public health. During the Clinton Administration, Professor Michaels was Assistant Secretary for Environment Safety and Health at the Department of Energy, where he played a role in overseeing safety and health issues for employees at nuclear weapons facilities.
While it is too early to predict Professor Michaels’s likely priorities, in past writings, he has indicated the need for OSHA: (1) to issue a workplace injury and illness prevention program rule; and (2) to develop an electronic recordkeeping and reporting system. Both would further past and present OSHA initiatives.
During the Clinton Administration, OSHA developed, but never issued, a Safety and Health Program rule which would have required employers to implement a broader process for preventing injuries and illnesses in the workplace. Should Professor Michaels be confirmed, he may press his interest in an injury and illness prevention program rule, likely reigniting discussions regarding the need for employers to implement safety and health programs at their worksites.
A potential electronic recordkeeping system also fits neatly into OSHA’s current enforcement efforts. OSHA will be releasing a Recordkeeping National Emphasis Program (NEP) in the next few weeks, which will focus enforcement resources on recordkeeping inspections in certain establishments. OSHA will perform thorough records reviews and investigate the extent to which employers may be discouraging workers from reporting injuries and illnesses. The Department is intent on rooting out underreporting. An electronic recordkeeping system could make it easier for the agency to monitor worksite injuries and illnesses and possible underreporting.
No information has been released as to when Professor Michaels’s confirmation hearings may be held. This announcement, however, may calm the uncertainty that had been swirling around OSHA as to who would be the permanent political head of the agency.
We will, of course, continue to keep you apprised of developments with respect to the nomination.
Representative John Conyers (D-Mich.) has once again introduced in the House of Representatives a bill that would require the Occupational Safety and Health Administration (OSHA) to promulgate a safe patient handling and injury prevention standard. The “Nurse and Health Care Worker Protection Act of 2009” has reignited the debate over the proper approach to ensuring employee and patient safety in the health care industry.
The Health Care Worker Protection Act would require OSHA, not later than one year from the date of promulgation of the bill into law, to publish a proposed rule to require health care employers to, among other things:
- use engineering controls to perform patient lifting and repositioning of patients and to eliminate all manual lifting of patients by health care workers, except where the use of safe patient handling practices is demonstrated to compromise patient care;
- implement a safe patient handling and injury prevention plan including hazard identification, risk assessments, and control measures; and
- obtain input from direct-care registered nurses, health care workers, and employee representatives in developing and implementing the safe patent handling and injury prevention plan, including the purchase of equipment.
The legislation would also provide specific whistleblower protections for any health care worker who in good faith reports a violation or suspected violation of the Act. Under the legislation, OSHA would have to finalize the safe patient handling rule within two years from the date of passage.
This is not the first time that this or similar legislation has been introduced in Congress. However, with the Democratic majorities in both the House of Representatives and the Senate, and Democratic control of the White House, there is greater momentum behind the bill. In addition, the Acting Head of OSHA, Jordan Barab, recently signaled a willingness to consider industry-specific ergonomics rulemakings to deal with high-hazard industries.
Almost a decade ago, OSHA finalized an ergonomics standard that would have required all health care employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management. It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods they are out of work due to a work-related injury.
Congress and President George W. Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA). As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard. No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.
The Acting Head of OSHA recently suggested that OSHA is considering an industry-by-industry approach to ergonomics as an acceptable method to pursue some ergonomics rulemaking in light of the CRA. The health care industry is a prime target for OSHA attention. It has high musculoskeletal injury rates, compared with the average of all of private industry. In addition, just a few years ago OSHA published its “Ergonomics for the Prevention of Musculoskeletal Disorders: Guidelines for Nursing Homes,” which detailed a variety of ergonomic controls for employers to implement to assist in patient handling.
Health care employers stay tuned. There will certainly be more on ergonomics and the health care industry over the next several months.