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.

Consistent with its edict to other state plans, the Occupational Safety and Health Administration (“OSHA”) has instructed California to bring its construction fall protection requirements into line with federal OSHA construction fall protection requirements which requires fall protection for employees working in above a height of 6 feet. Currently, California does not have specific regulations for residential construction. Fall protection is decided based on the task being performed with the lowest trigger height being 7.5 feet. Neither California’s construction industry, nor any of the state’s unions are expressing the need to adopt the federal 6-foot trigger, especially in light of California’s lower fall injury rates compared with the rest of the country. However, on January 21st, the California Safety and Health Standards Board agreed to make compliance with federal construction fall protection standards a top priority, without saying how it will do this.

The Occupational Safety and Health Administration will hold an informal hearing to gather testimony on a comprehensive agency proposal on worker exposure to beryllium. The proposal would cut the permissible exposure limit (PEL) tenfold and impose employer mandates. To read the full article, written by Henry Chajet, click here.

Fatality and serious injury reporting to OSHA has expanded, but can now be done online. Under reporting rules that went into effect in January 2015, employers must notify OSHA of a work-related fatality within eight hours and of a work-related hospitalization, amputation, or loss of an eye within 24 hours. https://www.osha.gov/report.html

Report a Fatality or Severe Injury

  • All employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye.
  • A fatality must be reported within 8 hours.
  • An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

To Make a Report

  • Call the nearest OSHA office.
  • Call the OSHA 24-hour hotline at 1-800-321-6742 (OSHA).
  • Report online.

Be prepared to supply: Business name; names of employees affected; location and time of the incident; brief description of the incident; and contact person and phone number.

The Occupational Safety and Health Administration and the Federal Aviation Administration have executed a memorandum of understanding (MOU) regarding the enforcement of the whistleblower provisions in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21) (49 U.S.C. § 42121), a law enacted in 2000 to improve air safety. To read the full article, written by Erik Dullea, click here.