Insight & Commentary on Occupational Safety & Health Issues
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.
In its first comprehensive changes in 30 years, the Occupational Safety and Health Administration has updated its Guidelines for Safety and Health Programs to reflect “changes in the economy, workplaces, and evolving safety and health issues.” To read the full article, click here.
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 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:
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.”
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):
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.
The Occupational Safety and Health Administration has issued new guidance designed to protect the rights of whistleblowers who reach settlements approved by OSHA. To read the full article, written by Nickole Winnett, click here.
In response to a request from a federal judge, OSHA has agreed to extend the effective date of the anti-retaliation provisions in it’s new final rule, Improve Tracking of Workplace Injuries and Illnesses until December 1, 2016.
The provisions were originally set to become effective in August and that date was further extended to November 1, 2016 to allow the agency additional time for outreach and education to the regulated community. The new extended deadline of December 1, 2016 is in response to a request from a federal judge who is presiding over the legal challenge of the new rule. The additional time was requested to consider a preliminary injunction seeking to permanently delay the effective date of the standard until a decision is reached in the case.
Employers now have until December 1, 2016 to comply with OSHA’s anti-retaliation provisions, which require employers to inform employees of their right to report work-related injuries and illnesses without fear of retaliation; to implement reasonable procedures for reporting injuries and illnesses that do not discourage employees from reporting work-related injuries or illnesses and prohibit employers from retaliating or discriminating against employees for reporting injuries and illnesses.
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In 2012, the U.S. Court of Appeals for the District of Columbia 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 “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.” According to OSHA, the rule is 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.” In short, this agency action is not an attempt to clarify an existing duty but to create a new one by undoing the holding in the Volks case.
Public comments to the proposed rule were submitted in September 2015. On October 14, 2016, OSHA submitted the final rule to the Office of Information and Regulatory Affairs (OIRA) signaling that a final rule may be issued in the next several months. Under Executive Order 12866, OIRA reviews agency rulemaking to “ensure that agencies carefully consider the consequences of rules (including both benefits and costs) before they proceed.”
OIRA has 90 days to review the final rule and hold stakeholders meetings, if such meetings are requested. After its review, OIRA may clear the rule for promulgation and issuance in the Federal Register or return the rule to OSHA for reconsideration. If OIRA reviews and clears the final rule it could be issued shortly before the swearing in of the next President in January 2017.
Last week a federal judge requested that OSHA agree to further extend the November 1st effective date for the anti-retaliation provisions in OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” also known as the Electronic Recordkeeping rule.
In May 2016, OSHA published the final rule requiring electronic submission of Part 1904 recordkeeping records to OSHA depending on the employer’s size and industry. Specifically, employers with 250 or more employees (including part-time, seasonal or temporary workers) in each establishment are required to electronically submit their 300, 300A and 301 forms to OSHA on an annual basis and employers with more than 20 but less than 250 employees in certain identified industries are required to electronically submit their 300A form on an annual basis.
Additionally, the final rule establishes employer injury reporting policies and anti-retaliation provisions. The final rule requires employers to develop employee injury and illness reporting requirements that met specific criteria.
Specifically, employers must inform employees of the following:
Under the anti-retaliation provisions OSHA has indicated that certain safety incentive policies and post-incident drug testing policies will be considered as discriminatory because, according to OSHA, they discourage employees from reporting work-related injuries and illnesses. The final rule was challenged by several trade associations and a preliminary injunction was sought to delay the effective date of the anti-retaliation provisions until a decision in the case was reached. The preliminary injunction requested nationwide relief, including relief for all employers. OSHA is objecting to this preliminary injunction and the request for nationwide relief.
In an Order issued on October 14, the judge requested that OSHA grant an additional extension until December 1, 2016 to allow the parties additional time to brief the issue of whether a nationwide injunction for the parties as well as non-parties should be granted. OSHA has until October 18th to notify the court in writing as to whether it will grant the extension until December 1, 2016.
