/>iFriday, April 28, 2017, was Workers’ Memorial Day. Employers and employees across the country paused to remember those who have lost their lives in workplace accidents. Views on how to best protect employees vary, but all safety and health professionals agree the safety and health of all employees is of paramount importance. It is worth taking a moment to remind your employees and coworkers of the importance of working safely and complying with all safety and health rules. Everyone should leave work each day in the same condition as they arrived.
Secretary of Labor Update
100 days into President Trump’s administration, the Occupational Safety and Health Administration (OSHA) continues to wait for leadership and direction; however, Alexander Acosta has now been confirmed as the Secretary of Labor. President Trump nominated Mr. Acosta after President Trump’s first nominee for Secretary of Labor, Andrew Puzder, withdrew his nomination on February 15, 2017. Mr. Acosta will likely steer OSHA in a more business-friendly direction. In previous Republican administrations, OSHA focused more effort on cooperative programs like the Voluntary Protection Program (VPP) and the Safety and Health Achievement Recognition Program (SHARP) and less effort on regulatory initiatives and aggressive enforcement. Just how much OSHA’s focus will shift is largely dependent on who President Trump nominates for assistant secretary of labor for OSHA, which is also a position requiring Senate confirmation. Until an assistant secretary of labor is confirmed, Deputy Assistant Secretary Dorothy Dougherty will likely continue as interim head of the agency.
Although the ultimate direction of OSHA under President Trump’s administration remains uncertain, the past few months have been marked, somewhat paradoxically, by regulatory rollbacks and, at the same time, continued aggressive enforcement.
Regulatory Rollbacks and Delays
Nullification of the Volks Rule
In 2012, the U.S. Court of Appeals for the District of Columbia held that the six-month statute of limitation contained in section 9(c) of the Occupational Safety and Health Act (OSH Act) precluded OSHA from issuing a citation against an employer for an alleged failure to record an injury or illness that occurred more than six months prior to the issuance of the citation. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). OSHA subsequently attempted to circumvent the decision by proposing, and in December 2016 finalizing, the “Clarification of Employer's Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” informally known as the Volks Rule. On March 22, 2017, the Senate voted to adopt a House resolution nullifying the Volks Rule, and on April 3, 2017, President Trump signed the House resolution into law.
Postponement of the Beryllium Rule
On January 9, 2017, OSHA finalized the Occupational Exposure to Beryllium rule, which was originally scheduled to take effect March 10, 2017. Following President Trump’s inauguration, the effective date of the rule was postponed until March 21, 2017, and last month, OSHA further postponed the effective date of the rule until May 20, 2017 to allow the incoming administration “an opportunity for further review and consideration of the rule.” OSHA National News Release (Mar. 22, 2017). Various industry groups have filed petitions for review of the rule, but the proceedings remain in the early stages. The compliance date for the bulk of the obligations under the rule currently remains March 12, 2018.
Postponement of the Silica Rule
On March 25, 2016, OSHA finalized the Occupational Exposure to Crystalline Silica rules. The standard that applies to the construction industry provided a compliance date of June 23, 2017. However, earlier this month OSHA determined, “additional guidance is necessary due to the unique nature of the requirements in the construction standard.” OSHA National News Release (Apr. 6, 2017). OSHA is now scheduled to begin enforcing the standard on September 23, 2017. This delay in enforcement will give the new administration time to review and evaluate the future of the rule.
Last spring, various industry and union groups filed petitions for review of the final rule. The industry groups argued that substantial evidence in the rulemaking record does not support the new rule and have asked for the rule to be vacated. The union groups have argued that the rule does not go far enough to protect workers and have asked the court to direct OSHA to reconsider issues related to medical surveillance and physicians’ recommendations. Although these challenges remain pending, they may ultimately impact whether construction companies must comply with the rule by September 23, 2017.
The Status of the Electronic Recordkeeping Rule Remains Uncertain
On May 11, 2016, OSHA finalized the rule to “Improve Tracking of Workplace of Injuries and Illnesses.” The final rule amended two provisions of OSHA’s recordkeeping standards. As was expected, the rule requires many employers to electronically submit certain injury and illness records to OSHA. More unexpectedly, the rule contains certain anti-retaliation provisions that have been the subject of ongoing litigation.
OSHA’s recordkeeping requirements are nothing new, but employers have only been required to provide those records to OSHA if requested during an inspection. The final rule requires establishments1 with 250 or more employees to electronically submit to OSHA the 300A Summary, 300 Log and 301 Incident Report, and establishments with 20 - 249 employees in all of the manufacturing NAICS codes to electronically submit to OSHA the 300A Summary. These data submissions are scheduled to be phased in beginning July 1, 2017.
OSHA’s initial plan was to make the data publicly available on OSHA’s website. OSHA believed doing so would further its policy of “regulation by shaming” by encouraging employers to take additional actions to prevent workplace incidents in order to avoid a potentially negative impact on certain contracts and business relationships.
OSHA also planned to use the data to “effectively target” its enforcement resources. OSHA conducts two basic types of inspections: unprogrammed and programmed. Historically, unprogrammed inspections occurred in response to accidents of which OSHA became aware. Two years ago, the amended reporting requirement significantly increased the number of such inspections. The electronic recordkeeping requirement would further increase OSHA’s awareness of workplace accidents and provide OSHA with an additional basis for initiating accident-related inspections.
The first phase-in deadline requires all covered employers to electronically submit the 300A Summary by July 1, 2017. According to OSHA’s website, OSHA “will provide a secure website” for electronic reporting. Despite the looming deadline, OSHA has not yet rolled out the website for these electronic submissions (https://www.osha.gov/injuryreporting/), nor has OSHA issued any formal statement regarding when employers should expect the secure website to be available.
As is the case with the Silica and Beryllium rules, OSHA may be waiting to take action until new leadership has the opportunity to review the rule. OSHA’s recent actions in two pending challenges to the rule indicate as much.
In July 2016, industry groups challenged the electronic submission and anti-retaliation provisions of the rule. TEXO ABC/AGC Inc. et al. v. Perez et al., No. 3:16-cv-01998-L (N.D. Tex.) Regarding the electronic recordkeeping submission, the plaintiffs have alleged:
OSHA changed its position with respect to the confidentiality of the information it is requiring companies to produce on its online database, without providing a reasoned justification; and
OSHA failed to provide evidence that publication of employers’ information from its online database will have any effect on workplace safety and health; rather, the intent of the rule is to allow employers’ confidential and proprietary information to be misused and misinterpreted by the public and special interest groups, thereby exposing businesses to significant reputational harm and loss of goodwill.
In another challenge to electronic reporting provisions of the rule, industry groups have alleged OSHA is not authorized “to publicly disseminate reports collected under the Rule [because] Congress has not given the Agency the authority to publish injury and illness data and confidential business information, as it has with other regulatory agencies, such as the Mine Safety and Health Administration . . . ” Plaintiffs also note OSHA previously took the position that the information from Form 300A “was exempt from disclosure under the Freedom of Information Act because such disclosure ‘can cause substantial competitive injury.’” National Association of Home Builders of the United States et al. v. Perez et al., 5:17-cv-00009-R (W.D. Okla.).
In both cases, OSHA recently requested the proceedings be stayed for 60 days to “allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues raised in this case.”
Although the future of the electronic reporting rule remains uncertain, covered employers should be prepared to submit 300A information by July 1, 2017 should OSHA move forward with the initial deadline and make the reporting website available.
Continued Enforcement
Although the first 100 days of President Trump’s administration have seen continued delays of OSHA’s regulatory initiatives, OSHA has not implemented a stay on enforcement. OSHA has continued issuing significant citations against employers even though OSHA has curbed, at least for the time being, its policy of regularly issuing enforcement press releases designed to shame employers. Since January 20, 2017, OSHA has issued at least 166 citations with proposed penalties exceeding $40,000, according to information available on OSHA’s website.
The increase in penalties that took effect last August has contributed to the overall number of citations with total proposed penalties over $40,000. Serious citations that once carried a maximum penalty of $7,000 are now issued with a penalty of $12,675. Throughout the first quarter of 2017, we have seen citations with just two–to-four items result in penalties of $20,000 to nearly $50,000.
On April 12, OSHA issued its first enforcement press release of President Trump’s administration. OSHA likely issued the press release because of the gravity of the enforcement action against the employer, not because OSHA plans to return to the common shaming press releases of President Obama’s administration. The enforcement action at issue focused on a fatal accident that occurred in Boston when a 12-foot trench collapsed and ruptured an adjacent waterline, which then filled the trench with water. Two workers died in the accident. The enforcement action includes citations with a proposed penalty of $1,475,813 as well as a grand jury indictment of the company owner for manslaughter.
Employers must be careful not to conflate the regulatory pushback with a relaxation of enforcement actions. Employers must continue to strengthen and enforce their safety and health programs and culture to protect both their employees and their business. Given that OSHA can use any accepted citation, including an Other-Than-Serious citation as a basis for a Repeat classification for up to five years and Repeat citations now carry a potential penalty of $126,749, employers should carefully evaluate the factual and legal merit of any citation before ultimately accepting it.
Recent Review Commission Decisions
A handful of Administrative Law Judge (ALJ) decisions became final orders of the commission last month. Most of these decisions hinged, at least in part, on whether the employer had knowledge of the alleged violations. OSHA cannot sustain a Citation and Notification of Penalty by simply proving a violation of one of its standards occurred. In order for OSHA, “[t]o establish a violation of an OSHA standard, the Secretary must establish that: (1) the standard applies to the facts; (2) the employer failed to comply with the terms of that standard; (3) employees had access to the hazard covered by the standard, and (4) the employer [knew or] could have known of the existence of the hazard with the exercise of reasonable diligence.” Sec’y of Labor v. Paramount Advanced Wireless LLC, 23 OSHC (BNA) 1232 (June 21, 2010).
These recent decisions have examined knowledge by focusing on both knowledge of the employer’s supervisors and the adequacy of the employer’s safety program. “’The knowledge element of the prima facie case can be shown in one of two ways. First, where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer. In the alternative, the Secretary can show knowledge based upon the employer’s failure to implement an adequate safety program, with the rationale being that – in the absence of such a program – the misconduct was reasonably foreseeable.’” Sec’y of Labor v. Vulcan Indust. Cont. Co., LLC, OSHRC Docket No. 16-0445 (Mar. 7, 2017) (citing ComTran Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1307-08 (11th Cir. 2013)); see also Sec’y of Labor v. Martin Mech. Contractors, Inc., OSHRC Docket No. 16-0641 (Mar. 14, 2017); Sec’y of Labor v. Capitol Concrete Contractors, Inc., OSHRC Docket No. 15-1823 (Feb. 27, 2017). Whether at issue in the Secretary’s prima facie case or the employer’s affirmative defense of unpreventable employee misconduct, the adequacy of the employer’s safety program is absolutely critical to the ultimate question of whether an employer can be held liable for violations committed by its employees.
Commentary
Employers should take time this spring to review their safety and health programs to ensure they adequately address the hazards to which employees may be exposed. One opportunity to do so is the upcoming National Safety Stand-Down to Prevent Falls in Construction, which will take place May 8-12, 2017. Even if your operation does not involve any fall hazards, a safety stand-down is an effective way to remind supervisors and employees of the importance of following safety and health programs and to provide any retraining that may be necessary. Lastly, as part of a safety program review, employers should establish a method for enforcing its safety and health program. Not only will these steps protect employees, but they will also protect your business.
