Season 1, Episode 2- 8 mins 54 sec

This podcast covers two major developments in workplace safety health and law:

1). OSHA is increasing employer penalties for the first time in 25 years.

2). OSHA’s proposed electronic recordkeeping rule is almost final.

Be sure to listen to this quick podcast to find out the latest details on these 2 issues.

 

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OSHA is being criticized for a recent interpretation letter clarifying who is responsible for recording illnesses and injuries in what the agency considers a “joint employer relationship” where supervision is shared between a host employer and a staffing agency. In deciding whether the host employer or the staffing agency is responsible for recording injuries and illnesses, the determining factors, according to OSHA’s requirements, are: (1) who supervises the employees on a day-to-day basis, and (2) what constitutes day-to-day supervision. The requirement under 29 C.F.R § 1904.31(a) stipulates:

You must record on the OSHA 300 Log the recordable injuries and illnesses of all employees on your payroll, whether they are labor, executive, hourly, salary, part-time, seasonal, or migrant workers. You also must record the recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis.

Section 1904.31(b)(2) elaborates, stating that the host employer must record the injuries and illnesses of temporary workers if it supervises them on a day-to-day basis.

In the situation described in the interpretation letter, a temporary staffing agency hired, orientated, and trained workers before placing them in jobs as requested by the host employer. The staffing agency controlled all personnel matters, such as compensation, benefits, vacation and leave requests, discipline and reporting injury/illness. Additionally, the staffing agency provided round-the-clock onsite supervision of their employees five days per week. However, the pivotal factor in this situation was that the host employer assigned daily tasks to the temporary workers. According to OSHA’s Frequently Asked Questions for OSHA’s Injury and Illness Recordkeeping Rule (“FAQ”), “Day-to-day supervision occurs when ‘in addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods and processes by which the work is to be accomplished.’” (emphasis added).

In the interpretation letter, OSHA concluded that because the host employer assigned daily tasks, it provided the day-to-day supervision of the temporary workers as clarified in FAQ and, therefore, was responsible for recording injuries and illnesses regardless of what the contract required. The interpretation letter further reminds employers of the importance of only recording an injury or illness one time and that in a joint employer situation, the supervising employer has that responsibility. It also noted that “for purposes of OSHA recordkeeping, there cannot be joint day-to-day supervision of temporary workers.”

The Agency has been criticized for its interpretation because for practical purposes the staffing agency controls and supervises its employees. The very fact that workers are only temporarily employed by the host employer, makes it virtually impossible for a host employer to track and maintain contact with the temporary workers, or even to know with certainty that every recordable injury or illness is attributable to work performed during employment for the host company.

The letter dated October 19, 2015 may be read in full here.

The quasi-judicial body overseeing enforcement actions by the Occupational Safety and Health Administration has handed OSHA another challenge to the agency’s nascent use of guidance documents as the basis for issuing citations, rather than relying on legally promulgated standards. To read the full article, written by Brian Hendrix, click here.

In a recent interpretation letter, OSHA responded to an employer’s request for “clarification on whether an employee’s laceration and subsequent fainting at the sight of blood constitutes a recordable case on the OSHA Form 300.”

The employee had scratched his finger on a vinyl saw clamp at work. The injury was minor and the only first aid treatment sought was a Band-Aid. However, while a Band-Aid was being applied by a coworker, the injured employee fainted at the sight of his own blood. When he regained consciousness he explained what had happened, and with no additional injuries, no further treatment was needed.

Under 29 CFR 1904.7(b)(1)(v) “a work-related injury or illness must be recorded if it results in loss of consciousness.” Although the employee’s scratched finger was work-related, the question was whether the subsequent fainting was work-related and therefore recordable. OSHA pointed to Section 1904.5(a) which states, “[the employer] must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition.” (emphasis added) (There are exceptions for situations where a person’s loss of consciousness is due to a personal medical condition, such as epilepsy, where the loss of consciousness at work is 100% attributable to the medical condition.)

In this incident, if the employee’s only work-related injury had been his scratched finger, it would not have been recordable. However, Section 1904.5(a) applies to his corresponding loss of consciousness as a result of the scratched finger and, therefore, under 1904.7(b)(1)(v), his loss of consciousness is recordable.

The letter can be read in full here.

Recognizing that “an ounce of prevention is worth a pound of cure”, OSHA introduced last week its draft document, “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation” (available here).  In the draft document, OSHA identifies these five key steps to creating an effective anti-retaliation program:

  1. Ensure leadership commitment
  2. Foster an anti-retaliation culture
  3. Implement a system for responding to reports of retaliation
  4. Conduct anti-retaliation training
  5. Monitor progress and program improvement

OSHA is seeking public comments on this document, which was drafted based on the recommendations made by the Whistleblower Protection Advisory Committee in its document “Best Practices for protecting Whistleblowers and Preventing and Addressing Retaliation”.  The comment period is open through January 19, 2016 and interested parties are advised to read both documents to gain a full understanding of the recommended practices for preventing and addressing retaliation that OSHA is seeking public comment on.  Comments can be posted for OSHA-2015-0025 on Regulations.gov.

Although OSHA believes that these recommended practices are “adaptable to most workplaces, these guidelines may need to be adjusted for such variables as employer size, the makeup of the workforce, and the type of work performed.”  With that in mind, OSHA is specifically looking for feedback on the following:

  1. What, if anything, is missing or not addressed in the document which should be included?
  2. Does it contain any concepts which are hard to understand?
  3. What challenges do you anticipate in implementing the recommendations?
  4. Are there any issues specific to small businesses that need to be addressed?
  5. Are there any industry-specific issues which need to be addressed, possibly in a separate document

The Bipartisan Budget Act of 2015 was signed into law by President Obama on November 2, 2015. Section 701, “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015” requires OSHA to increase its civil penalties for the first time since 1990. A one-time “Catch Up Adjustment” will occur in 2016 with penalties increasing up to a cap of 150%. Increases will be calculated based on the Consumer Price Index (CPI) between 1990-2015 and indications are that increases will be significant but less than the 150% cap. The next step is that Dr. Michaels, Assistant Secretary of Labor for OSHA, will adjust civil monetary penalties through an interim final rulemaking and the adjustment will come into effect by August 1, 2016 at the latest.

The Act contains an exception which allows an Agency to adjust civil monetary penalties by less than the required amount if certain provisions are met and ultimately approved by the Director of the Office of Management and Budget (OMB). However, this seems an unlikely direction given Dr. Michaels statement last month before the Committee on Education and the Workforce, Subcommittee on Workforce Protections:

Simply put, OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.

We will continue updates as they become available.

The Bipartisan Budget Act of 2015 contains a few surprises for employers covered by the OSH Act. To date, OSHA’s monetary penalties have not been subject to inflationary increases and, in fact, have been static since 1990. The proposed “Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015” which applies specifically to the OSH Act shakes up the status quo. If approved, OSHA will be required to adjust its penalties annually based on the Consumer Price Index (CPI). Beginning in January 2017, annual updates to civil penalties will be published each year by January 15th in the Federal Register. These adjustments will not require rulemaking.

However, the Act’s immediate impact is twofold. Section 701 contains a “catch up” provision which increases civil monetary penalties, based on a formula, up to a cap of 150%. So according to the Bipartisan Budget Act “a penalty now set at $10,000 could not increase to more than $25,000.” Further, the Act provides steps to “speed implementation” of these changes so that if approved, the first adjustment to penalties would be published by July 1, 2016 (at the latest) and be effective by August 1, 2016 (at the latest.)

We will be following these developments closely and bringing you updates. A summary of the Bipartisan Budget Act of 2015 can be read here.

At a House subcommittee hearing on October 7, the head of the Occupational Safety and Health Administration, Dr. David Michaels, faced a grilling from Republican lawmakers over recently issued guidance memoranda for agency inspectors and examples of allegedly over-the-top enforcement actions. To read the full article, written by Tressi Cordaro, click here.

 

 

The recent Review Commission case of Sec’y of Labor v. Lake Erie Constr. Co., OSHRC, No. 11-0146 still leaves Lake Erie Construction Company waiting for a final decision on the merits. However, the Review Commission case is already a landmark decision because it overrules a 34 year-old precedent established in the case of Gerard Leone & Sons, Inc., 9 OSHC 1819 (OSHRC 1981.) (“Gerard Leone”). Gerard Leone involved the application of the construction motor vehicles standard, § 1926.601(a), which regulates such things as brake lights, audible warning devices and seat belts on motor vehicles used in construction. In Gerard Leone the Commission held in a 2-1 decision that § 1926.601(a), “limits the standard’s applicability by vehicle and not by location.” Id. at 1820. In short, that decision held that the requirements for motor vehicles applied if the vehicle at issue is the type that operates off-road regardless of whether the location was on-highway but closed to the public.

In the Lake Erie case, an employee was electrocuted while working on a project which involved removing guardrail posts along a highway that was closed to traffic at the time of the accident. The guardrail posts were removed using a “pounder truck,” part of which either contacted or came close to contacting power lines, causing electricity to arc or travel to an “Attachment” and chain, thus electrocuting the employee who was holding the chain. Lake Erie received a citation for $70,000 for a willful violation of 29 C.F.R. § 1926.600(a)(3).

The question at issue was whether or not the “pounder truck” was covered under Subpart O, 29 C.F.R. § 1926.601(a) which states:

Coverage. Motor vehicles as covered by this part are those vehicles that operate within an off-highway jobsite, not open to public traffic. The requirements of this section do not apply to equipment for which rules are prescribed in 1926.602.

(emphasis added.)

The Secretary argued that based on the precedent set in Gerard Leone, the pounder truck was the type of vehicle which operated off-road and therefore was a covered vehicle. Lake Erie’s counsel argued that since the accident occurred while the pounder truck was on a highway, it was not covered under § 29 C.F.R. 1926.601(a) and, therefore, the citation was invalid.

In 2012, Administrative Law Judge Sharon D. Calhoun affirmed the citation but reduced the penalty to $35,000. The judge decided, based on the binding precedent set in Gerard Leone, that the pounder truck was a covered vehicle. However, she added that she felt the decision in Gerard Leone was wrong and in its petition for discretionary review, Lake Erie counsel noted that similar doubts have been raised in other cases.

In reaching its decision, the Commission decided that “(s)pecifically, reading § 1926.601(a) as addressing the type of vehicle operated rather than the location of its operation is contrary to the provision’s language – ‘vehicles that operate within an off-highway jobsite, not open to public traffic.'” Other cases over the years have argued that the language of this provision is plain and deliberate – there is no reference to the “type” of vehicle, nor is there any discussion of vehicles that can operate within an off-highway jobsite. The provision simply refers to “vehicles that operate within an off-highway jobsite, not open to public traffic.”

The Commission’s decision on September 24, 2015 held “[W]e overrule Gerard Leone’s holding that the language of
§ 1926.601(a) applies to motor vehicles based on their particular type. Relying on the plain language of the provision, we now conclude that it covers motor vehicles based on the location of their operation, i.e. ‘within an off-highway jobsite, not open to public traffic.'”

The case has now been remanded to Judge Calhoun to determine “whether, at the time of the alleged violation, the pounder truck was a ‘[m]otor vehicle [] … that [was] operat[ing] within an off-highway jobsite, not open to public traffic.'”

You can read the full decision here.