The Occupational Safety and Health Administration (OSHA) has released a final rule to restore and expand Obama-era requirements for employers in dozens of designated industries that have worksites with at least 100 employees to submit their injury and illness forms electronically to the agency. The final rule becomes effective on January 1, 2024.
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With the recent passage of Senate Bill 592, the Oregon Legislature has dramatically augmented the range of civil penalties on employers who violate Oregon Safe Employment laws. Previously, Oregon law imposed only the minimum civil penalties prescribed under the federal OSHA. Effective May 24, 2023, the minimum penalty for a single serious violation has now nearly quadrupled, from $300 to $1,116, while the minimum penalty for repeated violations has skyrocketed from $200 to $11,162—a difference of more than 5,000 percent.
Severe increases are prescribed for violations resulting in employee fatalities and for failures to correct violations after citation. In cases involving penalties for repeated willful or serious violations, any penalty reduction must be conditioned upon the employer’s agreement to comply with “additional abatement measures as determined by the state agency.”
Small business employers will find it more difficult to obtain any downward adjustment on assessed penalties based on the employers’ size.
The new law substantially broadens the state agency’s investigatory powers and responsibilities. The Director of the Department of Consumer and Business Services is now authorized to conduct a “comprehensive inspection of any place of employment as deemed necessary by the department based upon the prior violation history of the place of employment regarding any state occupational safety or health law, regulation, standard, rule or order.” The director is now required to conduct a comprehensive inspection in cases involving work-related fatalities or whenever three or more willful or repeated violations occur within a one-year period. What constitutes a “comprehensive inspection” now falls within the professional judgment of the inspector from case to case.
The state agency must submit at least annually a report summarizing the total number and amount of penalties assessed, the total number of appeals of citations, violations and penalty assessment, and the total number inspections completed by the department. The first report is due no later than September 15, 2024.
Now is the time for Oregon employers to review their health and safety policies and procedures, identify potential risks–particularly risks associated with any past OSHA violations in the employer’s history, and develop plans to mitigate or eliminate those risks. Employers cited for violations now have greater incentives to appeal those citations and to remain fully informed about their rights and obligations under the Oregon Safe Employment Act.
If you have questions or need assistance with OSHA or safety compliance, inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.
SB 592, if enacted, would create significant changes to the Oregon Safe Employment Act including:
The Bill has passed in the Senate and is progressing in the House. As currently drafted, SB 592 would be effective upon passage.
These proposed changes are significant for a number of reasons. First, allowing for comprehensive inspections means that OR OSHA could have wall-to-wall jurisdiction over an entire worksite, without the need to establish probable cause of a violation, based solely on what the inspector deems necessary. Second, without a defined look back period, an employer with any citation history, no matter how long ago, would be subject to a comprehensive inspection at the discretion of the OR OSHA. Finally, employers should be wary of agreeing to abatement measures simply to reduce the penalty as the cost of the abatement will often exceed the amount of the penalty.
Jackson Lewis attorneys will continue to provide updates on SB 592. If you have questions or need assistance with OSHA or safety compliance, inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.
Effective April 3, 2023, Oregon OSHA suspended its rules addressing the COVID-19 Public Health Emergency and Amended Work Clothing Rules via Oregon OSHA Administrative Order 1-2023.
The COVID-19 rules have been temporarily suspended as an interim measure until Oregon OSHA implements the permanent rulemaking process to fully repeal the rules, which it intends to do shortly. For those employees who still feel vulnerable to contracting COVID-19, the agency also made temporary amendments that include allowing employees the option to wear face coverings, and requiring employers to supply face coverings at no cost to employees when the employer requires their use.
These changes are in tandem with Oregon Health Authority’s announcement that masks are no longer required in healthcare settings, also effective April 3, 2023.
The Occupational Safety and Health Administration (OSHA) successfully established the existence of an excessive heat hazard for which the agency cited the employer, the Occupational Safety and Health Review Commission (OSHRC) has ruled, resolving a question open since 2019.
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Manufacturers’ increasingly advanced robotic systems have made the Occupational Safety and Health Administration’s (OSHA) standard for the Control of Hazardous Energy (Lockout/Tagout) impractical, even obsolete, in many workplaces. The new technology is forcing change in a standard that appears among the top 10 cited by OSHA each year.
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Top leaders of the Occupational Safety and Health Administration (OSHA) have detailed new and upcoming enforcement efforts to protect “vulnerable workers” (i.e., immigrant, minority, female, and lower-paid) who may be more vulnerable to workplace hazards.
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As Monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in protecting employees. However, this guidance applies only to workplaces covered by the Aerosol Transmissible Diseases (ATD) standard, which is notable because the guidance itself states that “MPX spreads primarily by close or direct contact with infectious rashes, lesions, scabs, or body fluids.” However, the guidance also states that “the virus can become airborne during changing or handling of contaminated linen.
Click here to read more on the California Workplace Law Blog.
This summer is shaping out to be another scorcher and Washington State employers should know about the Department of Labor & Industries (“LNI”) new emergency requirements for heat and smoke protections for outdoor employees effective June 15 through September 29.
Washington’s emergency requirements are meant to help employees avoid heat exhaustion and heat stroke. Covered employees include any worker who must work outside for more than 15 minutes in any 60-minute period, regardless of industry.
Workplace Heat
The emergency rules for workplace temperatures update WAC 296-62-095 – 09560 and employers are responsible for monitoring work site temperatures throughout the day. When temperatures reach 89° employers must ensure these protocols are in place for workers regardless of their clothing type:
If outdoor employees are required to wear clothing that may cause overheating at lower temperatures, employers should know that the temperature threshold for these requirements may differ. These requirements apply to employees wearing nonbreathable clothing, such as PPE suits, at 52° and 72° for employees wearing double-layer woven clothes, such as jackets, sweatshirts, or coveralls. Employers must train workers and supervisors on these new emergency requirements.
Wildfire Smoke
The new emergency rule for wildfire smoke is codified at WAC 296-62-085. With the unfortunate and increased reality of wildfires, the resulting smoke is also a potential hazard to employees. Under this rule, employers must monitor the Air Quality Index (AQI) for wildfire smoke and implement safety protocols. When the AQI is at 69 or higher, employers are encouraged to limit their workers exposure to smoke. LNI provides some helpful suggestions for limiting exposure:
At this AQI level, employers must also: (1) have a written smoke response plan with various elements; (2) determine smoke levels before and periodically during shifts; (3) train employees on wildfire smoke hazards and inform them of available protective measures; and (4) train supervisors on how to respond to health issues caused by smoke.
When the AQI is at 101 or higher, employers must limit workers’ exposure whenever feasible, alert employees to smoke levels, and provide and encourage use of respirators. Also note that protective respirators are required in extreme AQI levels (500+). At all times during the implementation of this emergency rule, if employees show signs of injury or illness related to smoke, employers must monitor to determine whether medical care is needed. Employers cannot prevent workers from seeking medical treatment.
These emergency rules are meant to supplement the permanent annual heat prevention rules that require ready access to at least one quart of drinking water per worker per hour, an outdoor heat exposure safety program with training, and an appropriate response to workers who are experiencing heat-related illness symptoms.
If you have questions about this blog, please reach out to the Jackson Lewis attorney with whom you often work, the authors of this blog, or any member of our Workplace Safety and Health Team.
Employers can breathe a sigh of relief for now as it appears that Senate Democrats are no longer pursuing a massive increase to OSHA’s penalties for safety violations. Currently, the maximum fine OSHA can assess against an employer per alleged repeat, willful, or failure-to-abate violations is $145,027. The penalty amount is subject to automatic annual inflation adjustments.
Last year, the U.S. House of Representatives passed a bill that would have dramatically raised the maximum penalty to $700,000 per alleged violation – over a 380% increase from the current cap. However, the most recent update to the reconciliation spending bill still being debated by the U.S. Senate did not mention or include any provisions for raising the cap on civil money penalties for citations issued by OSHA.
Labor and safety groups along with many Democrats have long advocated for higher OSHA fines which they argue will deter safety violations and encourage better employer compliance by reducing or eliminating workplace hazards that could lead to serious injury or death. Despite these good intentions, OSHA regulatory compliance can be extremely complicated and expensive even for large employers and increasing penalties at such a high rate will not necessarily result in better outcomes. In fact, massive fines would most certainly lead to employers being more likely to contest citations in drawn out litigation. This would take away time and resources from actual compliance and would not serve the underlying purposes of the OSH Act.
On the funding front for the agency, Democrats on the U.S. Senate Appropriations Committee have proposed a $68 million dollar increase to OSHA’s fiscal budget for 2023. In total, U.S. Senate Democrats would fund OSHA in 2023 with approximately $679.8 million dollars. While certainly a significant increase from 2022 funding levels, this is considerably less than the $702 million dollars requested by the White House or the $712 million dollar OSHA budget passed by the U.S. House this year.
According to the committee’s bill report, the additional funding is designed to increase OSHA’s critical enforcement activities to inspect the nation’s workplaces to prevent employee injuries and deaths. Under this proposal, all line-items for OSHA’s budget would be increased from 2022 levels. This includes $272 million for enforcement, whistleblower protections at $27.5 million, and standards development at $27.5 million. It is likely that any budget increase for enforcement would be directed to hiring more Compliance Safety and Health Officers (CSHOs) in order to conduct more workplace investigations related to hazards such as heat stress, workplace violence, and ergonomics.
While employers will need to be prepared for an expected rise in OSHA enforcement activity next year, at least for now it does not appear that it will come along with significantly higher penalties.
If you have questions or need assistance on OSHA compliance, inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.