Shortly before OSHA’s new injury and illness reporting requirements came into effect last January, OSHA issued “Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39.” These interim procedures served as enforcement guidance for Area Offices and compliance officers when issuing citations to employers for failing to report injuries under the new requirements. Last week the Agency issued revised enforcement procedures, “Revised Interim Enforcement Procedures for Reporting Requirements under 29 C.F.R. 1904.39” due to the “influx of workplace incident reports to OSHA and the field’s experiences with the new reporting requirements.”  The revised procedures include two significant departures from the previous guidance:

  • Maximum fine increased for failing to report a reportable incident within 24 hours of learning of the incident. Previously the maximum fine was $1,000 with an option to reduce the fine for, e.g., small businesses. The maximum fine is now set at $5,000 with the same reductions still available. This does not, however, change the Area Director’s authority to raise the unadjusted penalty as high as $7,000 if s/he “determines that it is appropriate to achieve the necessary deterrent effect.” Under the revised enforcement procedures, the violation will still be classified as other-than-serious.
  • Monitoring inspections. After an employer has reported a reportable event (fatality, in-patient hospitalization, amputation, or loss of an eye) OSHA makes a decision based on the “Category” of the incident whether to conduct an on-site inspection or a Rapid Response Investigation (RRI). If an RRI is initiated, OSHA sends a letter to the employer and the employer agrees to conduct its own internal investigation, take steps to abate any hazards, and provide a written response to OSHA. The new guidance provides for monitoring inspections of closed RRIs “based on a randomized selection of closed investigations.” Meaning that in some cases, where OSHA informs an employer an RRI is closed, there still remains the potential for an on-site inspection to confirm abatement of the hazardous condition that resulted in the reportable injury.  The Agency claims this is to ensure accuracy in the reporting and has said that the inspection “will be limited to an inspection of the previously reported condition.” Further, OSHA has said that anything uncovered by the employer in the course of its internal investigation will not be used by the Agency to cite the employer provided “employees are not exposed to a serious hazard” and “the employer is taking diligent steps to correct the condition.”

To read more, OSHA’s enforcement guidance may be viewed in full here.

Training and education were highlighted as key concerns of participants at a February 11 workshop called by the Occupational Safety and Health Administration and the Federal Communications Commission to discuss proposed guidance for best safety practices for mobile phone and broadcast tower workers and to provide an update on certification and apprentice programs for those employees. To read the full article, written by Carla Gunnin, click here.

Reminder: IF your company is subject to OSHA’s Injury and Illness Recordkeeping and Reporting Requirements, you must post “in a common area where notices to employees are usually posted” OSHA’s Form 300A (summary of job-related illnesses and injuries) for the previous year.  The posting period runs from February 1 through April 30.  If you are unsure of your legal obligations, check OSHA’s Recordkeeping Rule webpage or contact Jackson Lewis directly.

Manufacturing industries with elevated injury and illness rates in Kansas, Missouri, and Nebraska face an increased probability of getting a comprehensive safety and health inspection as a result of an initiative launched by the Occupational Safety and Health Administration on January 25. To read the full article, written by Tressi Cordaro, click here.

Authored by: Linda Otaigbe

The Obama administration has requested an increase in funding for both the Occupational Safety and Health Administration (“OSHA”) and the Federal Mine Safety and Health Administration (“MSHA”) for fiscal year (“FY”) 2017. In the February 9, 2016 budget request, the administration proposes that OSHA receive $595 million in FY 2017, which would be an 8% increase over the agency’s 2016 budget and that MSHA receive $397.3 million for FY 2017, which would be a $21 million increase from 2016.  This request is very likely to be opposed by Congress, which cut the Obama administration’s similar FY 2016 spending requests for both agencies.

In its detailed proposal to Congress, the Department of Labor writes that the budget increase would allow OSHA to increase enforcement, through more inspections, and to expand compliance assistance to employers. OSHA proposes it will conduct 35,352 inspections in 2017, a 1,700 increase from the expected number in 2016.  In order to reach this goal, OSHA would have to fund 60 new enforcement positions in 2017.  With regards to whistle-blower programs, OSHA proposes spending $21.6 million in 2017 and adding 22 new positions in response to the increase in whistle-blower cases being filed with the agency.

OSHA also seeks $3.5 million for Voluntary Protection Programs (“VPPs”) activities, which would be the first time that the Obama administration has sought funding to cover such activities. The VPPs are initiatives that encourage management, labor organizations, employees, and OSHA to prevent workplace injuries and illnesses at worksites through cooperative agreements that focus on hazard prevention and control.  OSHA projects that in FY 2017 it will focus on issuing two final rules, a final rule on beryllium and a “burden-reducing rule” on additional Respirator Fit Test methods.

Among other items, MSHA is seeking $2.1 million to support the implementation and enforcement of the coal dust rule, roughly $650,000 to conduct impact inspections during off-shift hours, $350,000 to support enforcement activities in U.S. Territories, and $600,000 to provide for increased rulemaking activities.

The FY 2017 budget is currently pending approval from Congress. Follow our blog for future updates.

If you are an employer who provides healthcare or social services, it is time to dust off the workplace violence policy and review!  OSHA has released new guidance for preventing or materially reducing workplace violence events in healthcare and social service settings. According to OSHA, BLS data indicates that 27 out of 100 fatalities in 2013 for healthcare or social workers were related to violent acts.  OSHA intends this guidance to cover a broad spectrum of employment settings such as psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment centers, pharmacies, community-care centers, and long-term care facilities. This guidance replaces the prior guidance document that was issued in 2004.  See this link to the new guidance:   2015 guide from OSHA

 

 

 

 

 

 

A divided National Labor Relations Board (NLRB) has ruled that a memorandum of understanding (MOU) between NLRB and the Occupational Safety and Health Administration over OSHA-related issues does not require NLRB’s General Counsel to consult with OSHA before issuing investigative subpoenas. To read the full article, click here.

On January 28, 2016, OSHA released an updated Whistleblower Investigations Manual (OSHA Instruction CPL 02-03-005) to replace the manual dated April 21, 2015. The new manual makes three significant changes:

  1. The sections on Investigative Records and Statistics have been deleted. Investigative Records is covered in the new Chapter 23, “Information Disclosure.”
  2. Chapter 3, “Conduct of the Investigation” has modified the burden of proof. Prior to January 28, 2016, the merits of a whistleblower investigation were decided based on the “preponderance of the evidence.” Under the new guidelines, the burden of proof for all whistleblower statutes enforced by OSHA has been lowered to “reasonable cause.” Under the reasonable cause standard, it is sufficient that “OSHA must believe … that a reasonable Judge could rule in favor of the complainant.” “The evidence does not need to establish conclusively that a violation did occur.” This shift makes it easier for complainants to establish their case before OSHA.
  3. A new Chapter 23, “Information Disclosure” has been added which provides comprehensive instructions on the disclosure of whistleblower-related documents under OSHA’s Non-Public Disclosures policy, the Privacy Act, and the Freedom of Information Act. It includes discussion on non-public disclosure of information in the investigation file with a party to the investigation. OSHA recognizes that it may not always be advisable to provide actual documents if providing those documents might either lead to retaliation against the complainant, or result in an incident of workplace violence at the respondent’s place of business. In such situations, OSHA “in its discretion” may opt to provide a summary of the documents in place of the actual documents.

While the manual is written as guidance for OSHA investigators, it is also bears significance for anyone who may potentially be involved in a whistleblower investigation. The Manual can be read in full here.

 

The Republican leadership of a congressional oversight committee has started investigating inter-agency communications in response to the Obama Administration’s attempts to hold business franchisors accountable for labor law violations of their franchisees. To read the full article, written by Tressi Cordaro, click here.