To cap off the winter ABA conference, on Friday the conference discussed recent OSHA Review Commission decisions involving deference given to the Secretary’s interpretation, heat illness, and combustible dust.
Chief Judges Rooney (OSHRC) and Lesnick (MSHRC) discussed ethical and professional behavior before the Court, reminding attorneys to act appropriately and honestly in all circumstances. However, the main focus of today’s sessions was on MSHA’s Pattern of Violation program and OSHA’s proposed supplement to the recordkeeping regulations to enhance anti-retaliation protections for employees reporting injuries. Regarding MSHA’s Pattern of Violation program, the panel discussed the very real issue of being placed in the program without any citations being affirmed by the Judge, somewhat similar to OSHA’s severe violator enforcement program. Regarding the proposed supplement to the recordkeeping regulations, there was much discussion as to an employer’s ability to enforce safety rules even if an employee is injured, as well as an employer’s ability, and sometimes legal duty, to drug test employees following a workplace injury.
The day’s sessions, as with the rest of the conference, further demonstrated the sometimes deep divide that exists between employers, on one side, and OSHA and unions, on the other. Whereas OSHA and unions believe that further regulations are necessary to protect workers from potential retaliation, employers argued that the anti-retaliation provisions are sufficient as they currently exist. Nonetheless, employers will continue to face OSHA’s attempt to increase regulatory burdens.
Further, throughout the conference, employers repeatedly stressed the importance of OSHA’s consistence and predictability in issuing guidance and enforcement. OSHA, on the other hand, rejected employers’ request to provide bright line guidance, expressing its need for flexibility to address different factual situations. Consequently, we can expect seemingly inconsistent positions to continue to come from OSHA over the next year.