Category Archives: OSHA

Farewell to OSHA Rule

Looks like another Obama-era rule is about to bite the dust any day now—this time involving the Occupational Safety and Health Administration.

On Thursday, the Senate voted 50 to 48 (two Republican senators abstained) to eliminate an Obama-administration rule that required companies to retain their records of workplace injuries, illnesses and deaths for five years after an incident occurs. Roughly three weeks before, the House voted 231 to 191 to roll back the regulation. Now, the bill—passed under the Congressional Review Act, which gives Congress the ability to use a simple majority to roll back rules within a 60-legislative-day window—is just waiting for President Trump’s signature. (The president has indicated he would sign it.)

Under the Obama-administration rule, which went into effect in January, OSHA was given the ability to issue citations to employers that failed to track such incidences for five years after they took place. Previously, the statute of limitations was six months.

Senate Labor Committee Chairman Lamar Alexander (R-Tenn.) said the Obama legislation is the result of a policy that “makes no sense, does not help any workers, harms smaller employers most of all, and ultimately is rejected by Congress.”

Meanwhile, Congressman Bradley Byrne ( R-Al.), author of the legislation, issued a statement applauding the Senate’s vote: “We should be focused on practive policies that help improve workplace safety instead of punitive rules that do nothing to make America workers safer,” he said. “We took a major step in the right direction today by restricting OSHA from moving ahead with such a flawed regulation.”

Of course, the bill has its detractors, too.

Prior to the Senate vote, Jordan Barab, a former Deputy Assistant Secretary for OSHA (2009 to 2017) posted an article on the Economic Policy Institute site that was critical of Congress’ efforts to kill the rule. Barab points out in the piece that “without being able to enforce any violation within the five-year period, enforcement of recordkeeping accuracy would be almost impossible.”

Yesterday, I asked Edwin G. Foulke Jr., a former assistant secretary of labor for OSHA and a partner in the Atlanta and Washington offices of Fisher Phillips, to weigh in on the potential impact of the move. As he put it:

“When you look back to the ’80s and ’90s, when we used to get the real large penalties of six figures or [more], many times it involved cases with recordkeeping violations going back a number of years. So [the rollback] is going to limit the number of the large citations you’re going to see from a recordkeeping standpoint.”

Of course, he added, employers are still going to be required to maintain those records. “It’s just that OSHA is not going to be able to go beyond the six-month time frame that’s in the act itself.”

As for what other OSHA rules might be in the sights of the Trump administration, Foulke pointed to electronic filing. For now, he said, OSHA is moving forward because no one has told it not to. But once a new Secretary of Labor is confirmed, he added, that could change.

Sacrificing Safety or Creating Jobs?

The fate of an Obama-era piece of legislation designed to improve worker safety appears to be anything but safe.

On Monday, the U.S. Senate voted by the slimmest of margins—49 to 48—to eliminate the Fair Pay and Safe Workplaces rule, which was created to “limit the ability of companies with recent safety problems to compete for government contracts unless they agreed to remedies,” as the Washington Post reported this week.

Signed by then-President Barack Obama on July 31, 2014, the executive order required prospective federal contractors bidding on federal deals worth more than $500,000 to disclose their violations of certain workplace protection laws before receiving a contract. The rule also obligated federal agencies to work with noncompliant contractors in an effort to address existing safety-related issues.

The regulation was put on hold, however, by an October 2016 court order determining that it exceeded congressional limits. A measure to abolish it has since made it through the House, and this week’s Senate vote all but assures that will now happen. President Donald Trump is expected to sign off on rolling back the rule—just one of a handful of worker safety regulations the administration is eyeing for elimination.

“This is the opening salvo of the Republicans’ war on workers,” Deborah Berkowitz, senior policy adviser at OSHA, told the Post. “It sends a signal that Congress and the administration is listening to big business and their lobbyists and they are not standing up for the interests of the American workers.”

Meanwhile, groups such as the U.S. Chamber of Commerce and the Business Roundtable contend that the Fair Pay and Safe Workplaces rule hampers businesses’ ability to compete for government contracts, which subsequently reduces jobs.

“Any changes in employment laws proposed by the employer community [are] disingenuously described [by Democrats] as an attack on workers,” Randy Johnson, the U.S. Chamber’s senior vice president for labor, immigration and employee benefits, told the Post. “The left has never seen a regulation they don’t like, no matter how many jobs it kills.”

Sen. Elizabeth Warren (D-Mass.) doubts that the motives behind wiping out this particular rule have much to do with saving or generating jobs.

“Instead of creating jobs or raising wages, they’re trying to make it easier for companies that get big-time, taxpayer-funded government contracts to steal wages from their employees and injure their workers without admitting responsibility,” she said in a Senate floor speech ahead of Monday’s vote.

As the Post points out, the eradication of the Safe Workplaces rule is likely just the first phase of a Congressional movement to “kill Labor Department regulations.”

The “Volks rule,” for instance, could be next.

Adopted in January, the rule was meant to “give OSHA authority to issue citations and levy fines against companies for failure to record illnesses, injuries and deaths that date back as far as five years,” according to the paper.

U.S. Representative Bradley Byrne (R-Ala.) has introduced a measure that would do away with the rule, which he has described as an overreach.

“If you are determined to be a bad actor, you’ll be a bad actor,” Byrne told the Post. “I don’t think this is going to encourage noncompliance. I think OSHA is being lazy on getting its investigations done.”

For their part, Congressional Democrats maintain that rejecting the rule would undermine OSHA’s efforts to enforce safety reporting requirements.

For example, Rep. Robert C. Scott, of Virginia, says doing so would “create a safe harbor for those employers who deliberately underreport.”

The arguments coming from both sides of the aisle with respect to such workplace-related regulations are nothing new, and are sure to continue. But it seems every bit as certain that we’re going to find out what sort of impact taking these rules away will have on workplace safety.

A Spike in Workplace Deaths

In case you missed it, more workers died from on-the-clock injuries in 2015 than in any of the six previous years, though the rate of such deaths has been falling, according to a New York Times report based on data released by the federal Bureau of Labor Statistics.

The number of deaths recorded by the BLS in 2015 is 4,836, and that’s the total number of fatal workplace injuries in 2015, the highest since 2008, when such injuries resulted in 5,214 deaths, the paper reports.

But, as the story notes,  “high as the total may seem, the rate of workplace deaths — as a share of every 100,000 full-time equivalent workers — fell slightly from 2014 and has fallen relatively steadily since 2006.”

Among the many breakdowns of the data — men made up 93 percent of all workplace deaths last year, for example — the story notes that older workers (65 and older) died at higher rates last year than their peers in any other age group:

With 650 deaths for those senior workers, 2015 was the second-worst year for the age group since the data was first collected in 1992. Only last year’s total, 684, was larger.

These are some scary statistics for older workers, but the silver lining is that hopefully they make a compelling argument for increased training and worker safety in the coming year for all ages of employees, especially the oldest ones.

 

Second Stand-Down for Safety is Set

Citing even more compelling reasons this year than last for getting the construction-safety message out, the U.S. Department of 465986031 -- constructionLabor’s Occupational Safety and Health Administration has announced it will be holding its second annual National Fall Safety Stand-Down in May.

“With the economy on the rebound and housing starts on the rise, now is the time for all of us to renew our commitment to sending workers home safe every night,” says Secretary of Labor Thomas E. Perez.

According to OSHA, falls are still the leading cause of death in the construction industry, as hundreds of workers die each year and thousands more suffer catastrophic, debilitating injuries. Yet, lack of proper fall protection remains the most frequently cited violation by the agency.

Building on last year’s widespread participation in the one-week event, which Staff Writer Mark McGraw wrote about in this blog post,  OSHA decided to expand it from one week to two weeks, now scheduled for May 4 through 15. During that time, the agency notes in its release, “employers and workers will pause during their workday for topic talks, demonstrations and training on how to use safety harnesses, guard rails and other means to protect workers from falls.” It adds:

“Underscoring the importance of this effort, industry and business leaders, including universities, labor organizations, and community and faith-based groups, have already begun scheduling 2015 stand-downs in all 50 states and around the world.”

The stand-down initiative is part of OSHA’s fall prevention campaign, launched three years ago with the National Institute for Occupational Safety and Health, NIOSH’s National Occupational Research Agenda and The Center for Construction Research and Training, according to the announcement on Feb. 18. It cites numerous other partners for this year’s event as well.

“Given the tremendous response we’ve received, it’s clear that this is an important issue to a great number of people across this nation,” says Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.

In the added words of NIOSH Director Dr. John Howard, “no child should lose a parent, no wife should lose a husband and no worker should lose [his or her] life in a preventable fall.”

I plan to follow this and perhaps report on this year’s participation to get an idea of just how committed the business community is to improving safety, and reducing these injuries and deaths. Stay tuned.

New Year Brings New Reporting Requirements

IND_023Throughout this past year, we’ve told you about some of the steps the Occupational Safety and Health Administration has been taking in its effort to improve workplace safety.

In June, for example, OSHA’s National Fall Safety Stand-Down saw thousands of employers join the organization in taking a timeout during the work day to focus on outlining the dangers of falls and improving fall-prevention efforts.

More recently, OSHA wrote a letter reminding some of the largest U.S. retailers of the potential hazards that accompany Black Friday sales events, and offering recommendations for keeping employees and consumers safe during the post-Thanksgiving shopping frenzy.

The organization’s latest step does more than offer recommendations, and takes effect in a matter of days.

Beginning Jan. 1, 2015, employers under the federal jurisdiction of OSHA will be required to report all work-related fatalities to the organization within eight hours, and must report all inpatient hospitalizations, amputations and losses of an eye within 24 hours of learning of the incident. In the past, employers were obligated to inform OSHA of all workplace fatalities and instances in which three or more workers were hospitalized as a result of the same event.

As Assistant Secretary of Labor and OSHA head David Michaels notes in a recent blog, employers will have three reporting options: calling or visiting their nearest area office during normal business hours, calling the 24-hour OSHA hotline at 800.321.OSHA or reporting online.

OSHA has also made available a handful of resources designed to detail the new requirements and what they mean for employers, including a dedicated web page, a list of FAQs, a fact sheet and a YouTube video.

“It is important to remember that these updated reporting requirements are not simply paperwork, but have a life-saving purpose,” wrote Michaels in the aforementioned blog. “They will help employers and workers prevent future injuries by identifying and eliminating the most serious workplace hazards.”

Workplace Injuries and Illnesses Trend Down

Some positive news coming out of the Bureau of Labor Statistics this morning: Nonfatal workplace injuries and illnesses have continued their decline. (The BLS report comes on the heels of a September 163118519report revealing preliminary data that shows a statistically significant decline in fatal work-related injuries. )

According to the BLS, slightly more than 3 million nonfatal workplace injuries and illnesses were reported by private-industry employers in 2013, resulting in an incidence rate of 3.3 cases per 100 equivalent full-time workers. This compares to 3.4 cases per 100 equivalent full-time workers in 2012.

Of course, it would be better if these numbers were even lower, but it’s nonetheless encouraging to see them heading in the right direction.

The rate reported by the BLS for 2013 continues a pattern of declines that, with the exception of 2012, occurred annually for the last 11 years.

So where are these decreases occurring? Compared to 2012, the BLS reports lower numbers in manufacturing, retail and utilities. It’s also worth noting that injuries and illnesses among state and local government workers remain significantly higher than the private-industry rates, with 5.2 cases per 100 full-time workers in 2013. For 2012, the BLS reported 5.6 cases per 100 full-time workers.

In case you missed it, the Occupational Safety and Health Administration issued final rules in September that revised the reporting to OSHA of workplace incidents. Currently, the regulations require employers to report work-related fatalities and in-patient hospitalizations of three or more employees within eight hours of the event. The final rule, which goes into effect Jan. 1, 2015, retains that requirement, but amends the regulation to require employers to report all work-related in-patient hospitalizations, as well as amputations and losses of an eye, to OSHA within 24 hours of the event.

OSHA also modified the list of industries partially exempt from requirements to keep records of work-related injuries and illnesses due to relatively low occupational injury and illness rates.

As might be expected, the new OSHA rule generated some pushback from business groups when it was announced in September.

In a story appearing on The Hill, Joe Trauger, vice president of human resources at the National Association of Manufacturers in Washington, took issue with the reporting of this information online and “called the rule ‘very, very troubling’ and ‘alarming.’  ” He noted that the “information could be taken out of context and used to ‘mischaracterize’ a company.”

Trauger told The Hill

“When OSHA publicizes this information online, it doesn’t provide the full picture of what occurred in the workplace. It could have occurred in the workplace but doesn’t have anything to do with the workplace.”

Taking a Timeout for Safety

workplace safetyAs part of what U.S. Secretary of Labor Thomas E. Perez has described as an “unprecedented event,” employers across the country are expected to join the Occupational Safety and Health Administration this week as participants in the National Fall Safety Stand-Down.

Part of OSHA’s fall prevention campaign, the stand-down will include “tens of thousands of employers and hundreds of thousands of workers” taking a break from the job to focus on outlining the hazards of falls and improving fall prevention efforts, said Perez in a Department of Labor statement.

According to OSHA, falls are the leading cause of death in the construction industry, and lack of fall protection was the most frequently cited OSHA violation in 2013. Throughout this week, employers and workers in a variety of industries will examine how to change all of that.

For example, the University of Texas at Arlington has joined OSHA staff to kick off fall-prevention events throughout the state of Texas, while Clark Construction Group is hosting a stand-down at the Stanford University Medical Center in Palo Alto, Calif. Today, NASCAR driver Greg Biffle is due to be on hand at the Daytona International Speedway in Daytona Beach, Fla., where he will demonstrate fall protection at the facility.

“Falls cause immense pain and suffering when they happen, and we must do everything we can to stop them,” said Assistant Secretary of Labor and OSHA head David Michaels, in the DOL statement.

“The good news is that they are preventable with three easy steps. The best protection is to plan ahead, ensure workers have the right equipment and train each worker to use it.”

More information on the National Fall Safety Stand-Down—including details on conducting a stand-down, accessing free education and training tools, fact sheets and other resources, and receiving a certificate of participation—is available at www.osha.gov/StopFallsStandDown.

DOL Budget Emphasizes Enforcement

President ObamaThe U.S. Department of Labor has released the president’s fiscal year 2015 budget request, which seems to sharpen the DOL’s focus on enforcing federal employment and labor regulations.

The release comes just weeks after a State of the Union Address in which President Barack Obama stressed, among other things, the need to create more jobs and help workers develop the skills they need to fill them. In a DOL statement, the department outlines plans to do that and more.

The DOL describes the budget as including “funding and reforms that will better prepare workers for jobs; protect their wages, working conditions and safety; provide a safety net for those who lose their jobs or are hurt on the job; and promote secure retirements.”

For example, the fiscal year 2015 budget aims to:

• Support reforms to improve training and employment programs, in an effort to help workers gain skills and return to work more quickly.

• Create additional jobs and careers by catalyzing new partnerships between community colleges and employers. The Opportunity, Growth and Security Initiative includes $1.5 billion in 2015 to support a four-year, $6 billion community college job-driven training fund to launch new training programs and apprenticeships designed to prepare participants for in-demand jobs and careers.

• Reach the long-term unemployed by proposing mandatory funding for a Job-Driven Training for Youth and the Long-Term Unemployed Initiative, consisting of programs targeted at allowing individuals to continue receiving unemployment insurance benefits while participating in short-term work placements.

The DOL also announced significant investments to be made in the department’s worker protection agencies, such as:

• nearly $14 million to combat the misclassification of workers as independent contractors;

• $565 million for OSHA to foster employer compliance with safety and health regulations and inspect hazardous workplaces, as well as strengthening its protection of whistleblowers against retaliation for reporting unsafe and unscrupulous practices; and

• a $41 million increase for the Wage and Hour division, to ensure workers receive appropriate wages and overtime pay.

Although many of the proposals contained in the budget “are more aspirational than [predictive of] actual policy changes, they do provide insight into what the agencies are prioritizing for the coming year,” says Ben Huggett, a Philadelphia-based attorney with employment and labor law firm Littler.

For employers and HR, this year’s DOL budget is most notable in that it “reflects the agency’s continued emphasis on enforcement,” says Huggett.

The proposal, he says, would grant the DOL $11.8 billion in discretionary funding, “much of which would support the enforcement of wage and hour, worker misclassification, whistleblower and employment safety laws.”

The boost to the Wage and Hour division is one of the “most significant and substantive proposals” put forth in the 2015 budget, he adds.

“This funding increase is in large part to pay for an additional 300 WHD investigators who would use risk-based approaches to target the industries and employers most likely to break the law.”

Huggett also singled out the possibility of a $13 million budget increase for OSHA in 2015 (bringing its total budget to $565 million) as indicative of the DOL’s commitment to enforcement.

“Approximately $21 million of this allocation would be used to enforce the various whistleblower statutes under OSHA’s authority,” he says. “When combined with last year’s rollout of an electronic web-based complaint form, it is clear that OSHA’s administration of the 22 different whistleblower statutes will continue to be a significant emphasis for the agency.”

The budget request will likely encounter criticism in Congress, where a number of proposals are likely to be rejected or modified, says Huggett.

Nevertheless, he adds, the budget request “confirms that employers can expect the aggressive enforcement of federal employment and labor laws to continue.”

OSHA Proposes Rule to Improve Injury Tracking

On the heels of the Bureau of Labor Statistics report that estimated 3 million workers were injured on the job in 2012, OSHA has issued a proposed rule designed to boost workplace safety and health through better tracking of workplace injuries and illnesses.

In a Nov. 7 teleconference, OSHA proposed to amend current recordkeeping regulations to add requirements for the electronic submission of injury and illness information that employers must already keep under existing standards. The first proposed requirement would oblige about 38,000 private companies with more than 250 employees to submit records electronically to OSHA on a quarterly basis.

Developed after a series of stakeholder meetings to help OSHA gather information about electronic submission of establishment-specific injury and illness data, the proposed rule “does not add requirements” for employers with respect to keeping safety records, said David Michaels, assistant secretary of labor for occupational safety and health, during the teleconference. Rather, he says, “it only modifies employers’ obligations to send records to OSHA.”

Michaels says the rule’s purpose is to provide employers, employees, the government and researchers with better access to data that will encourage earlier abatement of workplace hazards and ultimately prevent injuries, illnesses and fatalities.

Some companies and industry groups, however, are critical of the proposal, saying details about workplace incidents can be “misleading and misused,” according to a recent Wall Street Journal article (subscription required).

“It’s like reading just the plaintiff’s side of a case,” said Brett McMahon, president of Miller & Long DC Inc., telling the paper he previously submitted workplace safety records to the BLS, which were “wrapped into broader industry data without identifying the company.”

Others voiced concern that the new proposal may unintentionally put pressure on companies to under-report injuries.

“What OSHA is hoping to accomplish is that by getting it more visible, companies will do the right thing and work to reduce the numbers. That’s a good, long-term goal,” Barbara Dawson, an industrial hygienist at DuPont Co. and president of the American Industrial Hygiene Association, told the Journal. “But I think there’s going to be some short-term concern about the tendency to want to under-report so that the records look better.”

The public will have through Feb. 6, 2014, to submit written comments on the proposed rule. OSHA will hold a public meeting on the proposed rule in Washington, D.C., on Jan. 9, 2014.

Additional information on the proposed rule can be found here.

An Online Assist for Whistleblowers

online whistleblowerWith whistleblower suits already on the rise, a new online submission form may help trigger another upsurge in retaliation claims.

The Office of Information and Regulatory Affairs recently approved an online retaliation complaint form that would allow employees to electronically submit claims under any of the 22 whistleblower statutes overseen by OSHA, which currently accepts only verbal or written whistleblower complaints.

An increase in the number of whistleblower complaints filed is “the only possible outcome” of making the form available online, says Sara Begley, the Philadelphia-based co-global practice leader for the labor and employment group and head of U.S. labor and employment with Reed Smith.

“The new option facilitates complaint filing for aggrieved individuals by removing procedural deterrents in the current OSHA system,” she says, “under which individuals must submit complaints in formal writing (a more time-consuming process) or orally (within the agency’s regular business hours).”

The greatest increase in complaints, she says, is likely to come from individuals who have already filed a charge or court complaint over an adverse employment action.

“It is those individuals who are most likely to be represented by counsel who are aware of the new OSHA option, and who will be eager to tap additional methods to exert settlement pressure on employers.”

To avoid formal agency involvement, HR leaders “should act quickly to bolster their internal complaint filing procedures,” says Begley, who recommends training on codes of conduct and policies against whistleblower retaliation, implementation of a 24-hour, internal online complaint mechanism “to match the ease of filing being offered by OSHA,” and workforce communications emphasizing that the organization will treat internal complaints seriously.

The form’s online availability could very well lead to an increase in retaliation claims, says Mark Spring, a Sacramento, Calif.-based partner with Carothers DiSante & Freudenberger.

But he’s not so sure it would lead to a drastic escalation in claims with real merit.

“I believe that employees [with] legitimate claims they feel strongly about are willing to spend the time to reach out and contact someone at OSHA to have their complaint processed.”

On the other hand, those with more questionable claims “are likely much less invested in the process,” continues Spring. “While such folks may not be willing to contact OSHA to have their complaint filed or processed, they may be willing to simply fill out an online retaliation form.”

While the intention may be to simplify and speed up the filing process, taking it online could actually wind up frittering away valuable time and resources at OSHA, says Spring.

“I would be very fearful that this online complaint process will turn into a giant private message board that employees and others use for purposes having nothing to do with the filing and processing of legitimate complaints.

“I would fear that the OSHA employees assigned to review and investigate the so-called ‘complaints’ that would be lodged in such a manner would get so bogged down with the volume and morass of information being submitted that the real, important violations [would] be difficult to find and [would] not be remedied and corrected [in as timely a way] as they could be.”