It’s Official…OSHA’s “Volks” Rule is Invalidated

Yesterday President Trump signed H.J. Res 83, which finalized the Congressional Review Act (“CRA”) process and nullified OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule.

Under the CRA once the joint resolution of disapproval of the rule is signed by the President the “rule shall not take effect (or continue).” Further, OSHA is now prohibited from promulgating a rule “in substantially the same form” as the disapproved rule.

This means that OSHA is prohibited from issuing employers citations for failing to record injuries or illnesses beyond the six-month statute of limitations set out in the OSH Act, which is precisely what the U.S. Court of Appeals for the District of Columbia held when it decided the Volks decision. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

While OSHA is prohibited from issuing citations beyond the six-month statute of limitations, employers are still required to maintain injury and illness records for 5 years.  And during that 5-year time period, employers should continue to update their OSHA 300 Logs when new or additional information is discovered that may impact a determination of recordability.

New Acting Solicitor of Labor Department Signals Emphasis on ‘Humility’

In some of his first public comments since taking office, Department of Labor Acting Solicitor Nicholas Geale has signaled a shift in policies, telling attendees at a Georgetown University Law Center event that his department will “listen to the regulated community a little more” from a position of a “little bit more humility.”  To read the full article, written by Brad Hammock, click here.

New California Healthcare Workplace Safety Prevention Regulation Effective April 1, 2017

As previously mentioned, healthcare employers in California must comply with a host of new workplace safety requirements, effective April 1, 2017, on preventing workplace violence. The new requirements include written workplace violence prevention plans, additional recordkeeping, and preventive training, among other things.  To read our special report on all that this regulation entails, click here.

New Healthcare Workplace Safety Prevention Laws Take Effect April 1, 2017, in California

Healthcare employers in California should prepare for a host of new workplace safety requirements, starting this weekend. California’s new healthcare workplace safety prevention law takes effect April 1, 2017.

The scope of the regulation affects almost all health care facilities, medical groups, and several other care facilities including senior care centers, nursing homes, and retirement homes. Healthcare employers should not take the new regulations lightly as we can expect California Occupational Safety and Health Division (Cal/OSHA) will soon come knocking on doors and will enforce the regulation with some dynamism.

Specifically, if your facility provides diagnosis, treatment, convalescence, or rehabilitation (including for pregnancy), and you have capacity to admit more than 24 people, you are a covered entity.

The new regulation includes several new requirements for employers, including the establishment, implementation and maintenance of a written Workplace Violence Prevention Plan (WVPP) for each unit, service, and operation. There are a minimum of thirteen elements that the employer must comply with to ensure they have a full and complete WVPP.  In an addition to the WVPP, the new regulation discusses new recordkeeping requirements, training requirements, and reporting requirements.

Please stay tuned—next week we will be releasing a special report which provides a summary of the requirements of the regulation and some special tips on how to ensure compliance.

OSHA Staying the Course…for now…

At a recent American Bar Association meeting, Dorothy Dougherty, Acting Assistant Secretary of Labor for OSHA and Tom Galassi, Acting Deputy Assistant Secretary of Labor for OSHA both noted that while there has been a change in the Presidency and political administration, OSHA is moving along uninterrupted, for now.   Galassi noted that the agency will continue to focus on recalcitrant employers using enterprise wide enforcement and other programs such as the Severe Violator Enforcement Program.  Galassi discussed several key issues in enforcement such as the penalty structure, corporate wide settlement and the severe injury reporting requirements.

Penalties

 After the initial increase in penalties last year, OSHA has the authority to raise penalties on an annual basis.  For 2017, the current maximum penalties are as follows: willful/repeat – $ 126,749, serious, other-than serious and failure to abate – $12,675.

Galassi noted that the average penalty per citation has increased.  For employers with less than 10 employees the average penalty in 2015 was $2,297 compared to $3,080 penalty issued in 2016.  Similarly, large employers with over 250 employees saw the fines almost doubled from $5,915 in 2015 to $10,065 in 2016. For all establishments, the average penalty increased from $3,285 to $5,087 in 2016.

The increase in penalties has likely impacted the number of contested cases, which also increased.  In 2015 roughly 7% of citations were contested by employers and that increased to roughly 10% in 2016.

Corporate Wide Settlement Agreements

Galassi discussed the value in corporate wide settlement agreements which seek to address hazards that may be present in a number of an establishment’s facilities. For OSHA, these corporate wide settlement agreements provide specific detail about the type of abatement required and allow broader abatement then under a traditional settlement agreement.  According to OSHA, the key elements in any such agreements include the implementation of a safety and health management system, the use of third-party consultants and providing OSHA access to periodically monitor the progress of implementing the terms of the settlement agreement. Corporate wide settlement agreements also contain dispute resolution provisions which allow OSHA and the covered employer the ability to work out issues of non-compliance without issuing immediate citations for failing to abate the hazard.

Severe Injury Reporting Rule

In 2015, OSHA finalized a rule requiring employers to notify OSHA of in-patient hospitalizations of one or more employees, amputations, loss of an eye or fatalities. Since the implementation of that rule, OSHA has reported receiving roughly 280 reported injuries a week.  For calendar year 2016, OSHA received 10,887 reported injuries with 8,100 being hospitalizations and 2,672 being amputations. One-third of these reported injuries resulted in OSHA conducting a formal inspection and OSHA noted that they are inspecting more amputations than hospitalizations. These figures are similar to those reported in 2015.

Enforcement Indicators  

On average the number of inspections OSHA conducts in a year does not fluctuate greatly. In fiscal year 2015 OSHA conducted approximately 35,820 inspections and for fiscal year 2016 roughly 31, 948 inspections were conducted.  Galassi claimed the slight decrease is due to fewer number of compliance officers and the shift to using the enforcement unit metric.  In fiscal year 2016 OSHA conducted more unprogrammed inspections which included about 3,000-4,000 inspections under the sever injury reporting rule. The number of compliant inspections per year continue to go up and in fiscal year 2016 28% of inspections were compliant related, compared to only 20% in fiscal year 2010.

On the Horizon

It remains to be seen whether these key enforcement initiatives continue to be the backbone of OSHA once a new Secretary of Labor and Assistant Secretary of Labor are confirmed.  Employers are eager to see an OSHA that embraces safety and health from a compliance perspective as opposed to one solely from an enforcement perspective.

OSHA’s Volks Rule Overturned by Congressional Review Act

Late today, the Senate voted 50-48 to adopt H.J. Res 83, nullifying OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule. The “Volks” rule made recordkeeping requirements a continuing obligation and effectively gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the 5-year retention period, contrary to the six-month statute of limitations.  This final rule was in response to a 2012 U.S. Court of Appeals for the District of Columbia decision that held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Unhappy with the unfavorable ruling, on July 29, 2015 OSHA issued a proposed rule which it finalized in December 2016 and became effective in January 2017.  According to OSHA, the rule was meant to “clarify that 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 was more than merely an attempt to clarify an existing duty, it created a new one by undoing the holding in the Volks case.

The resolution passed the House of Representatives on March 1, 2017 and today the Senate adopted the resolution under the Congressional Review Act, a clear indication that Congress believed OSHA had exceed its authority in issuing the final rule. The resolution will now head to President Donald Trump to sign, who has indicated he will sign the resolution.

House of Representatives Votes to Block OSHA Recordkeeping Rule

The House of Representatives has voted to block a new Occupational Safety and Health Administration recordkeeping rule implemented in the last weeks of the Obama Administration. “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” was published in the Federal Register on December 19, 2016, and became effective on January 18, 2017.

To read the full article, written by Carla Gunnin, click here.

California’s Upcoming Indoor Heat Regulation

In October 2016, Governor Brown signed and approved Senate Bill 1167 which went into effect on January 1, 2017. The law directs Cal/OSHA to draft and propose heat illness and injury prevention standards for indoor workplaces by January 1, 2019. Specifically, the legislation adds Labor Code Section 6720, which states in relevant part:

By January 1, 2019, the division shall propose to the standards board for the board’s review and adoption a standard that minimizes heat-related illness and injury among workers working in indoor places of employment. The standard shall be based on environmental temperatures, work activity levels, and other factors.

Although this law proposes new regulatory activity in this area, it is not new news for California employers. California has an active outdoor workplace heat illness standard since 2006. Moreover, in the past several years Cal/OSHA and other agencies have initiated either training or enforcement to protect workers against indoor heat illness.

In 2012, the Division issued two serious citations and the Appeals Board confirmed the citations to two joint employers for violation of the Injury and Illness Prevention Standard because an employee sustained injuries due to heat illness while working indoors. In its Decision the Appeals Board evaluated several factors including ventilation of the facility, access to water, types of machines and whether they generate heat, whether there is an air condition system, whether the work performed by employees is fast pace, the breaks or recovery periods provided to employees, and whether there is a period of acclimatization provided to employees. National Distribution Center, Cal/OSHA App. 12-R6D2-0391, 12-R6D2-0378, Decision After Reconsideration (Oct. 5, 2015).  The Appeals Board held that it was appropriate for the Division to issue citations to employers for indoor heat illness under the Injury Illness Prevention regulation.

On February 28, 2016, the Division submitted a proposed draft of the language of a new regulation during an advisory meeting. Key take-aways from the Division’s initial thinking include:

  • The regulation would apply to (1) indoor places of employment where the dry bulb temperature exceeds 90 degrees or (2) where employees perform moderate, heavy, or very heavy work and the dry bulb temperature exceeds 80 degrees.
  • The Division would evaluate what type of clothing employees are wearing
  • The Division would evaluate the type of work performed by employees. The Division would critically analyze if employees perform moderate, heavy, or very heavy work to determine whether there is a violation of heat illness.
  • The Division would be more critical of high radiant heat work areas like foundries, brick-firing and ceramic plants, glass factories, vehicle manufacturing plants, rubber manufacturing plants, electrical utility rooms, electric power cogeneration facilities, boiler rooms, industrial scale bakeries, commercial kitchens, industrial scale laundries, food canneries, chemical plants, mining sites, smelters, and steam tunnels.
  • The Division would expect all employers to have a Heat Illness Prevention Plan that specifically identifies Indoor Heat Illness Prevention including procedures to involve employees in developing and implementing the plan, procedures to identify heat hazards, rest and hydration procedures, first-aid and emergency procedures, engineering and administrative control measures used to control indoor heat, and training programs.

Even though the official regulation has not been drafted or implemented, employers are advised to start examining their indoor environments for potential heat stress issues and how their operations may be impacted by an indoor heat stress rule.

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