By Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Congress passes a Resolution to dismantle an OSHA final rule, adopted in December 2016, which despite statutory language to the opposite, “more clearly states employers’ obligations” to record an injury or illness which continues for a full five-year record-retention period.

The Occupational Safety and Health Administration announced in December 2016 a new final rule that OSHA claims “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015. In response, the House of Representatives this week passed a Resolution to block the regulation, stating that “such rule shall have no force or effect.”

The bill, House Joint Resolution 83, passed by a vote of 231 to 191, will now move to the Senate for consideration. The White House had issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

In a statement, Rep. Byrne said: “OSHA’s power grab is not only unlawful, it does nothing to improve workplace safety. What it does do is force small businesses to confront even more unnecessary red tape and unjustified litigation. As Republicans have been saying for years, OSHA should collaborate with employers to prevent injuries and illnesses in workplaces and address any gaps in safety that might exist.”

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the standard six month statute limitations to an employer’s duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.  OSHA did not appeal the Volks decision.  As we previously blogged, OSHA’s rulemaking was a clear attempt to avoid the D.C. Circuit of Appeals ruling.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2017 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2016 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2017 inflation adjustments which will nudge the penalties even higher.  92 Fed. Reg. 5373 (Jan. 19, 2017).

Under the 2017 rule, the maximum OSHA civil penalties will be:

                                                                2016 Penalties            2017 Penalties

  • Other than Serious violations:             $12,471                       $12,675
  • Serious violations:                               $12, 471                      $12,675
  • Repeat violations:                               $124,709                     $126,749
  • Willful violations:                               $124,709                     $126,749
  • Failure to abate (per day):                   $12, 471                      $12,675

The new OSHA penalty amounts are applicable to OSHA citations issued after January 13, 2017, whose associated violations occurred within the six month statute of limitations

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, Brent I. Clark, Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Business organizations have once again brought suit against OSHA’s new electronic reporting and retaliation rule, arguing that the proposed online database violates employers’ First and Fifth Amendment rights and oversteps OSHA’s authority.

The National Association of Home Builders of the United States, the U.S. Chamber of Commerce, and other industry groups have sued Occupational Safety and Health Administration to prevent the implementation of its OSHA’s new injury and illness electronic reporting rule, arguing that OSHA’s proposed online database violates employers’ First and Fifth Amendment rights, is arbitrary, capricious, and otherwise contrary to law, and oversteps OSHA’s authority.  National Association of Home Builders of the United States et al. v. Perez et al., No. 5:17-cv-00009 (W.D. Okla. Jan. 4, 2017).

With regard to the new injury and illness reporting requirements, the industry groups’ Complaint alleges that OSHA “lacks statutory authority to create an online database meant for the public dissemination of employers’ injury and illness records.” In the Preamble to the Final Rule, OSHA premised its authority to issue the Rule on Sections 8 and 24 of the OSH Act. But neither of those sections authorizes OSHA to publicly disseminate reports collected under the Rule. The Plaintiffs contend that the Rule is arbitrary and capricious because OSHA has “changed its position on the confidentiality of the information it is demanding companies produce, without providing a reasoned explanation for that change.”  Moreover, Plaintiffs contend that the new Rule violates the employers’ First and Fifth Amendments rights by compelling them to submit confidential and proprietary information for publication on a publicly available online database.

The Complaint also takes aim at the new rule’s anti-discrimination and anti-retaliation provision. To that end, the Complaint alleges that because the Final Rule created a new scheme to prohibit discrimination and retaliation against employees, OSHA exceeded its statutory authority.  Specifically, the Agency “contravene[d] the express and sole statutory scheme established by Congress in Section 11(c) of the OSH Act to provide redress for retaliatory actions by employers against employees.”

We had previously blogged about the substance of OSHA’s new rule as it applies to drug-testing, retaliation claims, and accident reporting. In immediate response to the new rule, the National Association of Manufacturers (NAM) and others brought a suit to enjoin the rule, arguing that OSHA’s new rule went too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). Despite the pending lawsuit, OSHA has issued an interpretative guidance on the new rule, and the rule went into effect as planned on December 1, 2016.

The TEXO ABC Court’s decision denied the Plaintiffs’ Motion for Preliminary Injunction. The Court concluded that the Plaintiffs had not met their burden of establishing that they were likely to suffer irreparable harm. Slip Op. 7.  The TEXO ABC preliminary injunction denial, though, was not on the merits of the case. However, it is unclear whether the TEXO ABC Plaintiffs will continue to pursue that litigation given the Court’s denial of the preliminary injunction.

While it remains to be seen how these challenges will fare, the business community has shown a willingness to strongly oppose the new rule — a rule that has been widely criticized as emblematic of regulatory overreach.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Mark A. Lies, II, Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA finalizes rule that “more clearly states employers’ obligations” to record an injury or illness which continues for the full five-year record-retention period.

The Occupational Safety and Health Administration announced last week a new final rule that “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015.

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the six month statute limitations to an employers duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.

According to OSHA , this new final rule merely seeks to more clearly define employers’ obligations. “This rule simply returns us to the standard practice of the last 40 years,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. According to OSHA the amendments in the final rule add “no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not already required.”

In reality, the new rule’s an obvious attempt to avoid the D.C. Circuit decision in Volks. It is important to note that OSHA waived its right to appeal the Volks decision to the Supreme Court at the time and thus cannot legally evade the legal precedent created by that decision.

It is important for employers to ensure that employees who are responsible for recording the company’s injuries and illnesses are well trained to correctly identify those items that need to be logged.

The effective date for the rule is January 18, 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, Brent I. Clark, James L. Curtis, Mark A. Lies, II, Patrick D. Joyce, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: The Federal District Court has denied industry’s request to enjoin OSHA’s new rules on mandatory post-accident drug screenings and safety incentive programs, workplace retaliation, and requiring employers to post OSHA logs electronically.

We had previously blogged about the Occupational Safety and Health Administration’s new rule on drug-testing, retaliation claims, and accident reporting. In response to the new rule, the National Association of Manufacturers (NAM) and others brought a suit to enjoin the rule, arguing that OSHA’s new rule went too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016). Despite the pending lawsuit, OSHA previously issued an interpretative guidance on the new rule.

The Court just issued its decision denying the Plaintiffs’ Motion for Preliminary Injunction. The Court concluded that the Plaintiffs had not met their burden of establishing that they were likely to suffer irreparable harm in the absence of a preliminary injunction. Slip Op. 7. “Moreover, the court agrees with Defendants that the Rule simply incorporates the existing prohibition on employer retaliation against employees for reporting work–related injuries and employer procedures that would discourage a reasonable employee from reporting an injury.”

The Court’s ruling is not on the merits of the case but rather, is limited to the request for a preliminary injunction. However, it is unclear whether the Plaintiffs will continue to pursue this litigation given the Court’s refusal to preliminarily enjoin the rule.

The new rule will take effect on December 1, 2016.

The Substance of the New Rule as Enacted

The new rules are complex. First, a new anti-discrimination and anti-retaliation rule will apply to all employers. This rule requires all employers to inform employees about the requirements of the anti-retaliation rule relating to reporting injuries and illnesses. OSHA also interprets this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting. Additionally, the new rule prohibits incentive programs that are solely based on providing employees with benefits for not having workplace injuries. OSHA’s belief is that such policies chill employees from reporting legitimate workplace injuries in order to receive the benefit. OSHA’s new rule also allows compliance officers to issue citations for retaliation, upending the current statutory employee retaliation enforcement framework under Section 11(c) of the Act.

The new rule also requires that large employers and employees in specific high hazard industries file their injury and illness information electronically with OSHA. OSHA intends to release this employer injury and illness information publicly on its website, believing that this will “shame” employers into improving workplace safety and health. OSHA believes that the electronic data submission requirement would also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials. The electronic filing portions of the rule begin to take effect in 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By James L. Curtis, Brent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: With a dramatic change from a progressive democratic to a conservative republican administration we anticipate that OSHA is likely to pivot away from the enforcement heavy agenda to a more business friendly agency.

As we try to anticipate the President-Elect Donald Trump’s administration, supported by a Republican lead Congress, these are some of our thoughts and projections on what the future may hold for employers on the OSHA front.

Generally, we know from Candidate Trump claims that for the immediate future he may:

  • Propose a hiring freeze on all federal employees to reduce the federal workforce (except military, public safety and public health)
  • Propose a new requirement that for every federal regulation imposed, two existing regulations will be eliminated

While these claims are very broad in nature and offer no practical details on how they will be implemented, it sends a strong message of his goal of a more limited federal government and less federal government involvement in the workplace. Accordingly, these items may, to the extent that they are implemented, slow the frequency of planned inspections and the speed at which ongoing inspections and proposed citations are processed, and will likely halt (or dramatically slow) new regulations that may have been in the works. OSHA’s current pending and suggested rulemaking activities, such as its interpretation for narrowing the retail exemption under the Process Safety Management Standard, new permissible exposure limit (PEL) rules, and beryllium rules may all be re-considered and revamped in a new Republican administration.

Specifically, we know that David Michaels, PhD, MPH, Assistant Secretary of Labor for OSHA, will be leaving OSHA.  Michaels will likely be replaced by someone with a more pro-business perspective. However, we also know that the recently increased OSHA penalties are the law, therefore, will not likely be rolled back under the Trump administration.  We also believe that it is unlikely that the five year look back period for “repeat” violations will change.

As readers of our blog are aware, OSHA has recently proposed significant changes to the injury recordkeeping and anti-retaliation rules. Those changes are currently in litigation and OSHA has pushed back the effective date until December 1, 2016.  Given the change in administration, we would not be surprised if OSHA further delays implementation of these new rules.  If OSHA chooses to press forward with the new rules, they may be an early target for removal by the Trump administration.

We also believe that OSHA’s emphasis during the Obama administration on whistleblower and anti-retaliation claims will not be given the same focus under the Trump administration. Rather, we anticipate OSHA returning to more business friendly Voluntary Protection Program (VPP) and cooperative compliance programs over time.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark, Mark A. Lies, II, Patrick D. Joyce, Kay R. Bonza, and Craig B. Simonsen

worksafetySeyfarth Synopsis: Despite an ongoing lawsuit over its rules, OSHA issues interpretation for its May 2016 retaliation and recordkeeping rule.

We previously blogged that OSHA had again delayed, to December 1, 2016, enforcement of the anti-retaliation provisions of its new rule to Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). Enforcement of the rule was originally scheduled to begin in August 2016. Although enforcement of the Rule has been delayed and the Rule is being challenged in Court, on October 19, 2016, OSHA hastily issued a non-binding interpretation of the Rule, along with an interesting list of “Q&As.”

The interpretation clarifies the longstanding implication that employers must have a “reasonable” procedure for employees to report work-related injuries and illnesses under 29 C.F.R. § 1904.35(b)(1)(i), reiterates the existing prohibition on retaliation against employees for reporting work-related injuries or illnesses under section 11(c) of the OSH Act, 29 U.S.C. § 660(c), discusses discipline of employees for violating employer health and safety policies, explains OSHA’s position that post-accident drug testing policies be “objectively reasonable,” and clarifies OSHA’s policy on employer incentive programs.

Under the interpretation, for OSHA to establish an employer violation of section 1904.35(b)(1)(i), the Agency must show that the employer either wholly “lacked a procedure for reporting work-related injuries or illnesses, or that the employer had a procedure that was unreasonable.” Previously, the reasonableness requirement was implied. Specifically, an “employer’s reporting procedure is reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting.”

For example, the interpretation states that it would be reasonable to require an employee to report a work-related injury or illness “as soon as practicable,” but unreasonable to require employee reporting “immediately.” Further, it would be reasonable to require reporting through means such as phone, email, or in person, but unreasonable to require employees to report in person if they are unable to do so.

The interpretation also discusses OSHA’s stance in the preamble to the final Rule that its compliance officers can investigate employee retaliation claims and cite an employer, even though they lack the specialized training that section 11(c) investigators receive. The interpretation takes the position that the Rule merely clarifies the employer policies that OSHA believes are unreasonable, but does not establish new obligations or restrictions on employers. Even so, OSHA’s Q&A makes clear that it’s new anti-retaliation provision would allow OSHA to cite an employer for alleged retaliatory action well beyond the 30-day time limitation for bringing a complaint under section 11(c).

To establish a violation of section 1904.35(b)(1)(iv), prohibiting retaliation for reporting injuries and illnesses, OSHA must have “reasonable cause to believe that a violation occurred.” To make this showing, the interpretation requires OSHA to demonstrate that:

  1. The employee reported a work-related injury or illness;
  2. The employer took adverse action against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
  3. The employer took the adverse action because the employee reported a work-related injury or illness.

OSHA’s interpretation clarifies that section 1904.35(b)(1)(iv) is not intended to prevent employers from taking disciplinary steps against employees who violate employer health and safety policies. Rather, it “prohibits disciplining employees simply because they report a work-related injury or illness” without any underlying misconduct. OSHA will look to circumstantial and direct evidence, as well as whether the employer treated other employees who violated the same rule the same way, to determine whether the employee’s discipline was due to the violation of an employer health and safety policy or if it was retaliatory.

In addition, the interpretation addresses employer post-accident drug testing policies and when OSHA believes those policies may be retaliatory rather than investigatory or disciplinary. Under section 1904.35(b)(1)(iv), a post-accident drug testing policy will not be retaliatory when the employer has an “objectively reasonable” basis for conducting the testing. Drug testing conducted pursuant to state and federal requirements will not be considered retaliatory either.

OSHA asserts that the central inquiry as to whether a post-accident drug testing policy is objectively reasonable is “whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” Again, OSHA will look to see if the employer treated all employees in a similar manner or whether the employer only tested the reporting employee. For example, if a forklift runs into a pallet of boxes and the boxes fall on an employee, injuring that employee but not the forklift driver, and the employer only drug tests the injured employee, OSHA will likely find retaliation. However, if the employer drug tests both the injured employee and the uninjured forklift driver or only the uninjured forklift driver, OSHA will likely not find retaliation.

Finally, OSHA explains that section 1904.35(b)(1)(iv) does not prohibit employer safety incentive programs. Rather, “it prohibits taking adverse action against employees simply because they report work-related injuries or illnesses.” OSHA mentions “substantial award(s)” and suggests some level of materiality, then states that withholding any benefit due to the reporting of a work-related injury or illness, related to an incentive program or not, would likely be found retaliatory. However, OSHA says that conditioning a benefit on compliance with safety rules or policies or participation in safety-related activities would not be retaliatory.

For example, raffling off a gift card to employees who attend a safety training or providing a free lunch at the end of the month if employees have universal compliance with safety rules, such as wearing hard hats, would not be retaliatory. OSHA “encourages employers to find creative ways to incentivize safe work practices and accident-prevention” that do not penalize employees for reporting work-related injuries or illnesses.

Whether or not an adverse action is taken pursuant to a disciplinary policy, post-accident drug testing policy, or employee incentive program, “OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason.”

While OSHA has issued its guidance on how it hopes to enforce Section 1904.35(b)(1)(i) and (iv), such guidance may be premature as the Texas District Court must still decide whether it will order OSHA to delay enforcement of the Rule until the court has fully decided the Rule’s legality. Further, OSHA’s interpretation is not a law or regulation and is not necessarily how a judge will view the Rule.

We will continue to keep you updated as this issue develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By James L. Curtis and Craig B. Simonsen

Warehouseman after accident at heightSeyfarth Synopsis: OSHA just updated its annual list of the top ten cited standards. The list provides a starting point for employers reviewing their own safety programs.

OSHA just announced the Agency’s annual listing of the “Top Ten Most Frequently Cited Standards.” OSHA’s release noted that, “one remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.” Statistically, he noted that more than “4,500 workers are killed on the job every year, and approximately 3 million are injured.”

The ten most frequently cited standards are as follows:

OSHA’s 2015 Top Ten image from OSHA.gov.

As in years past, the Top Ten listing identifies fall protection, hazard communication, scaffolding, respiratory protection and lockout/tagout (LOTO) as major sources of citations. This annual listing is a testimony to both the difficulty of consistent compliance with these standards, and OSHA’s ongoing emphasis on these hazards.

Employers should use this listing as a reminder to emphasize these areas during new employee orientation and existing employee refresher training. Employers should also realize that OSHA will absolutely be looking for violations in these areas when they visit your worksite.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

By Mark A. Lies, II, Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

worksafetySeyfarth Synopsis: After a lawsuit was filed against OSHA challenging its May 2016 retaliation and recordkeeping rule, OSHA again delays the rule’s effective date.

OSHA announced today that it has again delayed the effective date for enforcement of the anti-retaliation provisions of its new rule to Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). The rule was originally scheduled to take effect in August 2016, but is now scheduled to take effect on December 1, 2016.

We had previously blogged about the OSHA’s new rule on drug-testing, retaliation claims, and accident reporting. Then in response to the new rule, and which we also blogged about, the National Association of Manufacturers (NAM) and others brought a suit alleging that OSHA’s new rule goes too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016).

In its announcement, OSHA states that it is delaying enforcement of the anti-retaliation provisions because the “U.S. District Court for the Northern District of Texas requested the delay to allow additional time to consider a motion challenging the new provisions.” That motion is a preliminary injunction motion brought by the plaintiffs asking the court to stay enforcement of the rule nationwide until it has been fully litigated in the courts.

In the TEXO ABC/AGC lawsuit, the plaintiffs allege that OSHA is “putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.”

The lawsuit seeks a declaratory judgment finding that the rule is unlawful to the extent that it prohibits or otherwise limits incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs.

We will continue to keep you updated as this issue develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA finalized a 78% increase to per violation penalties.

In a an interim final rulemaking published last week, the U.S. Department of Labor (DOL) finalized amendments to adjust the maximum civil penalty dollar amounts for OSHA violations. 81 Fed. Reg. 43430 (July 1, 2016).

We previously blogged about potential increases in OSHA penalties on November 3, 2015 and November 18, 2015.

According to OSHA, its maximum penalties, “which have not been raised since 1990, will increase by 78 percent” as follows:

  • Other than Serious violations:             $12,471
  • Serious violations:                              $12,471
  • Repeat violations:                               $124,709
  • Willful violations:                                 $124,709
  • Failure to abate:                                  $12,471 per day beyond the abatement date

Both Repeat and Willful violations will have a statutory minimum of $8,908 per violation. The new OSHA penalty amounts are applicable to OSHA citations issued after Aug. 1, 2016, whose associated violations occurred within the six month statute of limitations.  Hence, employers with ongoing OSHA inspections should expect to wait until August 1, 2016 or after to receive citations using the higher penalties, as long as the inspection commenced on or after February 1, 2016.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.