OSHA has announced a plan to establish a Whistleblower Protection Advisory Committee to advise and make recommendations to OSHA Assistant Secretary Michaels on ways to improve OSHA’s administration of its whistleblower protection enforcement program.  Click here for a link to a full article on the new Committee.

It has been approximately two years since the Department of Labor announced its “Plan/Prevent/Protect” compliance strategy, with the basic goal to “ensure employers and other regulated entities are in full compliance with the law every day, not just when Department inspectors come calling.”  We thought that it would be interesting to take a quick look back over the last two years to see how some of the key DOL agencies did in fulfilling their promised action items.  The attached Special Report looks back at the activities of OSHA, OFCCP, and the Wage-Hour Administration under Plan/Prevent/Protect. 

Vacating citations issued by OSHA for violations of the Occupational Safety and Health Act’s recordkeeping requirements, the U.S. Court of Appeals for the District of Columbia Circuit has held that the citations were untimely and barred by the Act’s six-month statute of limitations.  Click here for a full discussion of the decision. 

In one of the most significant rulemaking efforts in over a decade, OSHA has finalized a rule revising its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The rule will affect over 5 million business establishments across the country. Over 40 million employees will need to be retrained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be over $200 million for employers. Annualized net monetized benefits are estimated to be approximately $550 million.

Click here for an article analyzing the new requirements.

OSHA has announced a National Emphasis Program (NEP) to encourage compliance with safety and health standards at nursing and residential care facilities through programmed inspections.  The NEP, which directs OSHA compliance officers to focus inspections on ergonomic stressors associated with lifting patients; slips, trips, and falls; bloodborne pathogens; exposure to tuberculosis; and workplace violence, took effect on April 5, 2012 and is scheduled to remain in place for three years.  The attached Special Report summarizes the key aspects of the NEP and provides guidance to help ensure compliance with the OSHA standards identified as target areas. 

In a recent memorandum to Regional Administrators and Whistleblower Program Managers, Richard Fairfax, the Deputy Assistant Secretary for OSHA, has provided "guidance to both field compliance officers and whistleblower investigative staff on several employer practices that can discourage employee reports of injuries and violate section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act), or other whistleblower statutes."  Section 11(c) prohibits an employer from discriminating against an employee for exercising any right afforded by the Act.

The memorandum states definitively that "reporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination under section 11(c)."  It also lists the "most common" potentially discriminatory policies:

  • Taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury.  "[A]n employer’s policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury."
  • Taking disciplinary action against employees who report an injury or illness and the stated reason is that the employees have violated an employer rule about the time or manner for reporting injuries and illnesses.  "OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries.  To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee’s right and ability to report."
  • Taking disciplinary action against employees who are injured on the job because they violated a safety rule, when the rule violation is simply a pretext for discimination.
  • Establishing incentive programs that may discourage reporting of injuries.  "For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time."

The issue of programs and policies that may impact injury and illness reporting has been a topic of debate since OSHA issued its Recordkeeping National Emphasis Program (NEP), which instructed compliance officers to investigate certain safety incentive programs as part of the NEP inspections.  Employers should take note of this new guidance from OSHA and make any needed adjustments to their policies.

  

OSHA has published its long awaited update to its Hazard Communication standard to align the standard with the Globally Harmonized System of Classification and Labeling of Chemicals.  Click here to go to OSHA’s webpage on the topic, which includes links to the final rule and other guidance material.

We will be providing additional information on the rule and employer compliance obligations in the coming days.

Many businesses across the country have implemented on-site occupational health clinics to address occupational injuries and illnesses, as well as address common employee health needs.  While on-site occupational health clinics can provide many benefits for employers and their employees, they also can present significant compliance challenges for companies in the areas of employee benefits, privacy, leave management, and, of course, workplace safety and health.

Attached is a SPECIAL REPORT prepared by Jackson Lewis that discusses the key issues employers should consider when bringing health care "in-house."  Employers who run their own occupational health clinics, or who are considering instituting such clinics, are strongly encouraged to review this SPECIAL REPORT.        

In a February 16, 2012 letter to Congresswoman Kristi Noem, OSHA Assistant Secretary David Michaels has provided additional guidance to employers in the grain handling industry regarding the use of sweep augers to remove grain from bins.  Sweep augers are common tools used in grain bins to push grain remaining at the bottom of a bin into a discharge sump opening.  Typically, sweep augers are electrically powered and rotate in a circular direction around the bottom of the bin at an extremely slow speed.  The letter from Assistant Secretary Michaels responds to an inquiry from Congresswoman Noem asking for clarification of earlier Agency pronouncements prohibiting employees from ever entering a grain bin while a bin sweep auger is operating. 

In the February 16 letter, OSHA does not back off of its earlier position.  However, the Agency does state that "if an employer can demonstrate that a worker in a grain storage structure is not exposed to hazards presented by the equipment, the standard does not require the equipment to be deenergized before a worker enters the bin."  This statement may signal that the Agency is moving from a position of a categorical prohibition on employee entry while sweep augers are operating to one which could allow entry so long as certain steps are taken to avoid exposure to any hazard.  How such a policy would work in practice and what steps would be permissible is an open question that OSHA does not address in its response to Congresswoman Noem. 

The importance of this issue to the grain handling industry cannot be overstated.   Sweep augers are ubiquitous in the industry.  All grain handling employers should take note of this recent OSHA letter and make any required changes to their operations.         

On March 1, 2012, OSHA announced a change to its organizational structure related to its Whistleblower Protection Program (WPP).  The WPP will now report directly to the Assistant Secretary of OSHA, currently Dr. David Michaels, instead of the Director of the Directorate of Enforcement Programs.

The WPP is in charge of investigating workplace retaliation complaints made by employees under a variety of statutes, including the Occupational Safety and Health Act of 1970.  The reorganization is just the latest in a series of steps taken by the Department of Labor to strengthen the WPP.  The move is described by the Department as representing a "significantly elevated priority status" for whistleblower enforcement.

For more information regarding the reorganization, click here.