Employee claims of retaliation have risen steadily on a year-to-year basis and recent government statistics suggest this is a continuing trend. The Occupational Safety and Health Administration (“OSHA”), which enforces 22 separate federal whistleblower statutes, has issued updated statistics showing the number of whistleblower cases filed with the agency and their outcome. According to the report, OSHA completed a total of 2,769 cases in 2012, a significant increase from the 1,948 completions in 2011. This continues an upward trend going back several years. The number of complaint “determinations” in 2012 was 2,867, a 42 percent increase from the 2,013 “determinations” in 2011.  More information is here.

The General Accounting Office (GAO) has just completed a critical review of OSHA’s Nationally Recognized Testing Laboratory (NRTL) Program.  The NRTL Program is an OSHA program that accredits laboratories to perform testing of certain equipment to ensure its safety when used in the workplace.  Most notably, all electrical equipment used in worksites across the country must be approved for use by an NRTL.  Which laboratories receive accreditation to perform these services – and the types of products the laboratories can approve – are determined by this program.

For several years, NRTLs and laboratories wishing to be accredited as NRTLs, have complained about significant delays in the recognition process.  In addition, whenever an existing NRTL wishes to expand its testing services to include additional products, it must also seek approval from OSHA to do so, which can lead to further delays.  Among other things, GAO was asked to examine the extent of these delays and the consequences of them on NRTLs.

Citing an imbalance between staffing levels and scope of responsibilities and unclear application requirements, GAO concluded that the lengthy process “has potentially negative economic consequences for laboratories and requires OSHA staff to divert their time from other oversight activities.”  The GAO further identified three key strategies for improving timeliness:  (1) aligning program design with program mission and resources, (2) providing clear guidance and timely communication to stakeholders, and (3) developing performance measures and using data to identify inefficiencies.

In response to the GAO report, OSHA committed to further assessing Program effectiveness against alternative approaches and in coordination with other outside agencies.  We will continue to keep you posted on any developments with the NRTL Program.
 

OSHA recently issued its long-awaited regulatory agenda.  The agenda is designed to provide stakeholders with notice of what major regulatory initiatives the agency is planning and the projected timetables for those initiatives.

OSHA’s agenda is the first issued in several months by the agency and provides a glimpse into the regulatory priorities – in President Obama’s second term.  The signature initiative of OSHA over the last four years has been its Injury and Illness Prevention Program (IIPP) rule.  That rule has been under development for several years, but has yet to be released in any form or fashion to the public.  The recently published regulatory agenda states that OSHA will initiate the SBREFA process in January of 2013 for the rule, with a Notice of Proposed Rulemaking to follow in December, 2013.  Another major rulemaking – OSHA’s effort to propose a comprehensive standard regulating silica – is slated to be published in May, 2013.

Three other significant regulatory actions under development are listed as follows:

  • Combustible Dust – Initiate SBREFA in October, 2013.
  • Electric Power Transmission and Distribution – Issue final rule in March, 2013.
  • Update Recordkeeping Rule regarding Reporting of Amputations/In-patient Hospitalizations – Issue final rule in May, 2013.

All stakeholders should continue to monitor progress on these and other OSHA initiatives as we continue to see a very active OSHA in the coming months and years.
 

Assistant Secretary of Labor for the Occupational Safety and Health Administration Dr. David Michaels has appointed Beth Slavet as the new director of the agency’s Whistleblower Protection Program. Ms. Slavet is an employment attorney who has specialized in representing unions, Foreign Service employees and other government workers, with a focus on whistleblower protection. Her appointment is one of several developments in the last two years signaling a growing investment by the Department of Labor, and, as a general matter, the Obama Administration, in whistleblower mechanisms and resources as a means of combating corporate fraud and abuse and other alleged violations of law.  Read the full article here.

With the presidential election just a few days away, there is a lot of uncertainty on the future direction of OSHA.  If President Obama wins a second term, employers should expect to see a more active OSHA from the regulatory perspective, as many rules that could impact the employers are poised to be published in either proposed or final form after the election.  From an enforcement perspective, employers should expect to see the same level of active OSHA enforcement in a second-term Obama presidency.  If Governor Romney wins the election, some of the regulatory initiatives currently in the pipeline may be slowed or even scrapped, but undoubtedly some will be proposed or finalized.  Enforcement should also continue at high levels, although some of the enforcement procedures and targeting programs of the Obama administration may be changed.  For example, it is possible that OSHA under a “President Romney” may revisit the Severe Violator Enforcement Program or the Enhanced Administrative Penalties Memorandum published during President Obama’s administration.  Needless to say, Tuesday’s results will be – and should be – followed closely by all.

Below is a description of some of the regulatory initiatives that are primed to move forward under a second term Obama Presidency (and perhaps even a first term Romney Presidency):

Injury and Illness Prevention Program (IIPP).  OSHA’s IIPP rule has been the agency’s oft-stated most-significant regulatory priority.  This initiative has been under development for almost three years.  Over the last several months, OSHA has hinted that it is ready to begin the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for the rule, whereby the agency would solicit input on the rule from affected small business entities; but OSHA has not yet started the process.  It is still unclear what an IIPP rule will look like since OSHA faces the challenge of creating mandatory requirements that can be applied to employers of all sizes and in all industries.  Stay tuned!!

Crystalline Silica.  Employers should also stay tuned for OSHA’s rulemaking to comprehensively regulate crystalline silica.  OSHA’s draft proposed regulatory text for the rule, published in 2002, considered lowering the permissible exposure limit for the substance; implementing extensive “housekeeping” requirements, including prohibiting the practice of dry sweeping; requiring exposure monitoring and the establishment of regulated areas; and imposing medical surveillance obligations.  The proposed regulation could have significant impacts on employers and is still under review by the Office of Management and Budget (OMB), where it was first submitted in February, 2011.  This is a proposed rule that could certainly be affected by the outcome of the election.

Stricter Injury and Illness Reporting Obligations.  OSHA has also proposed requiring employers to report workplace amputations to the agency within 24 hours, as well as all in-patient hospitalizations within 8 hours.  Existing recordkeeping rules require employers to report in-patient hospitalizations of 3 or more employees to OSHA within 8 hours.  Any workplace fatality would continue to be reportable, as well.  OSHA’s proposed rule that would require employers to “check” a separate column on the OSHA 300 Log is also still out there and potentially ready to go final.  Should President Obama win a second term, employers should not be surprised if these rules are finalized in pretty short order.