Trump’s Actual Impact on OSHA

In November, we attempted to look into the crystal ball to see what potential impact the new Trump administration could have on the Occupational Health and Safety Administration (OSHA). Here are some of results so far, which on the whole, are favorable to employers who suffered under the “regulation by shaming” mantra of past Assistant Secretary of Labor David Michaels.

  • Budget Cuts – As predicted, on May 5, President Trump signed a spending bill that cuts the labor department’s discretionary spending budget by $83 million. This could limit some of OSHA’s enforcement efforts.

  • Recordkeeping as a Continuing Violation – The Volks rule, which was enacted by OSHA last December as a last minute rule in response to a loss, suffered through an adverse decision in the federal courts. The new rule established that an employer has a continuing duty to create accurate records of work-related employee injuries and illnesses. This effectively changed the statute of limitations for recordkeeping violations from six months to five years and six months. On April 3, President Trump signed a joint congressional resolution under the Congressional Review Act that overturned this rule. The law is now back to the original intent of Congress that the statute of limitations for all OSHA citations is six months. This is a significant win for employers who can focus their time on current substantive safety issues instead of reviewing documents for accuracy from up to five years ago.

  • Union Representatives in OSHA Inspections of Non-union Facilities – As mentioned in the prior post, I predicted that interpretation letters could change with the new appointment of the secretary of labor. One of the most controversial of these letters was the 2013 Fairfax memo regarding walkaround rights during an OSHA inspection. The memo stated that during an OSHA inspection of a non-union facility, a union representative could be designated as the employees’ “personal representative” even without representation election or voluntary recognition of the union as the exclusive representative of the employees. This was being challenged in court and then OSHA rescinded the Fairfax memo and agreed to revise the Field Operations Manual (FOM) for its inspectors to reflect the same change on April 25, 2017. The lawsuit was then dismissed as moot since OSHA rescinded the controversial memo. The letter was viewed as an overstep by OSHA into the area of labor relations covered by the NLRB, since it appeared to be motivated by giving unions more access to non-union employers for organization efforts rather than to assist in a safety inspection. This is another win for employers.

So far, the progress has been good for employers. We will just have to wait and see how other issues develop, including the electronic recordkeeping rule and non-discrimination standard (which limits blanket post-accident drug tests), which is being challenged in two separate lawsuits, as well as the silica standard, which is being challenged in court. The DOL has to decide how strongly it will defend these rules in court which will have a significant impact on how the courts may rule. Stay tuned for updates.

OSHA Clarifies Discipline, Retaliation and Drug Testing Commentary

When the Occupational Safety and Health Administration (OSHA) released its 2016 final rule requiring the electronic reporting of workplace injury and illness reports, it included controversial provisions on discriminatory discipline, retaliation, and even post-incident drug testing by employers. The uproar was instantaneous, with industry groups quickly filing lawsuits challenging OSHA’s authority to enforce the rule. Originally scheduled to go into effect on August 10th, the effective date for the new anti-retaliation rule was pushed back by OSHA until November 1st, and more recently, until December 1st.

In the interim, Dorothy Dougherty, OSHA’s Deputy Assistant Secretary, issued an interpretation memorandum designed to explain the anti-retaliation and injury reporting procedures in more detail. The interpretation may help clarify what your organization must do in order to comply with the final rule – even if it doesn’t make the rule more palatable.

Reasonable Procedures For Employees To Report Workplace Injuries/Illnesses labor law elections

An employer violates OSHA’s new final rule if it either fails to have a procedure for employees to report work-related injuries or illnesses, or its reporting procedure is unreasonable. OSHA states that this requirement is not new, as it was implicit in the previous version of the rule. But now, it is an explicit employer requirement.

OSHA considers a reporting procedure to be reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting an injury or illness. Examples of what it considers reasonable and unreasonable are as follows:

Reasonable

  • Requiring employees to report a work-related injury or illness as soon as practicable after realizing they have a reportable incident, such as the same or next business day, when possible

  • Requiring employees to report work-related injuries or illnesses to a supervisor through reasonable means, such as by phone, email or in person.

Unreasonable

  • Requiring ill or injured employees to report in person if they are unable to do so

  • Disciplining employees for failing to report “immediately” if they are incapacitated because of the injury or illness

  • Disciplining employees for failing to report before they realize they have a work-related injury that they are required to report

  • Unnecessarily cumbersome or an excessive number of steps to report a work-related injury or illness

In short, if your procedure allows employees to report workplace injuries and illnesses within a reasonable amount of time after they realize they have experienced a reportable event, and the procedure does not make employees jump through too many hoops, it will be reasonable and comply with the final rule.

Anti-Retaliation Provision Explained

Retaliating against employees for reporting work-related injuries or illnesses has long been unlawful. To issue a citation under section 1904.35(b)(1)(iv), OSHA must have reasonable cause to believe that an employer retaliated against an employee by showing:

  1. The employee reported a work-related injury or illness;

  2. The employer took adverse action against the employee (i.e., 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.

As in most employment retaliation cases, the third element on causation is often the toughest to prove. The determination is made on a case-by-case basis, depending on the specifics facts in any particular case.

OSHA has focused its commentary primarily on three types of potentially retaliatory actions—discipline policies, incentive programs, and post-accident drug testing. OSHA’s recent interpretation helps shed light on how employers should address these three issues to avoid a citation for a violation of the anti-retaliation rule.

Disciplining Employees For Violating Work Safety Rules

Employers violate the anti-retaliation provision by disciplining or terminating employees for reporting a work-related injury or illness. But, if an employer has a legitimate business reason for imposing discipline, such as the employee’s violation of a workplace safety rule, then there is no retaliation and no violation.

OSHA states that the primary inquiry is whether the employer has treated other employees who similarly violated a safety rule the same way – in other words, did the employer impose the same adverse action regardless of whether the other employees reported a work-related injury or illness. If the rule is consistently applied, then no retaliation exists. However, if the employer disproportionately disciplined employees for violating a rule when they reported workplace injuries, or the employer ignored violations of the safety rule when there was no injury or illness, OSHA may find that the actual reason for the discipline was the reported injury or illness rather than the rule violation.

Incentive Programs

OSHA does not prohibit employers from having safety-related incentive programs. But, it does prohibit employers from withholding a benefit or otherwise penalizing an employee because of a reported injury or illness. OSHA provides this example: if an employer raffles off a $500 gift card at the end of each month in which there are no workplace injuries, such an incentive program would violate the anti-retaliation provision as it withholds the incentive (i.e., the $500 gift card) when an employee reports a work-related injury. On the other hand, an acceptable alternative would be for the employer to raffle off a gift card each month in which employees universally comply with legitimate safety rules, such as using required fall protection and following lockout-tagout rules. The key is whether the employer is withholding a benefit because of a reported work-related injury. Incentive programs that penalize the reporting of injuries and illnesses are likely to result in an OSHA citation.

Post-Accident Drug Testing

One of OSHA’s more troubling and confusing anti-retaliation position is its stance that drug testing employees who report a work-related injury or illness can be considered retaliation. Many employers impose drug testing following any workplace accident or incident that results in injuries. OSHA states that while it does not prohibit employers from drug testing employees who report work-related injuries, employers must have an objectively reasonable basis for such testing.

So what is an objectively reasonable basis for testing? OSHA states that it will consider factors including whether the employer has a reasonable basis for concluding that drug use could have contributed to the injury or illness, whether other employees involved in the incident that caused the injury were also tested (or whether only the employee who reported an injury was tested), and whether the employer has a heightened interest in determining if drug use could have contributed to the injury due to the hazardousness of the work being performed.

In addition, OSHA will consider whether the drug test is capable of measuring impairment at the time the injury occurred, where such test is available. In its interpretive memo, though, OSHA states that at this time, the agency will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.

The bottom line is that OSHA is looking whether an employer is using drug and/or alcohol testing as a form of discipline against employees who report a workplace injury, which would be retaliation. Consequently, post-accident drug testing is permitted if all workers involved in the accident are tested in order to gain insight into the cause of the accident. But drug testing an employee whose injury could not possibly be related to drug use, such as a repetitive strain injury, would be seen as retaliation. 

Key Takeaways

Assuming that the anti-retaliation rules survive their legal challenges, employers should prepare to implement a reasonable procedure for employees to report work-related injuries and illnesses. Organizations should review any safety-related incentive programs and remove any punitive effects or withholding of benefits/incentives if an employee reports a workplace injury. When adopting and enforcing drug testing policies, be certain to test all workers involved in a workplace incident, not just those who were injured or reported an injury. And last but not least, be very mindful when deciding to discipline or terminate an employee who has reported a workplace injury or illness. Without a legitimate, well-document business reason for the discipline that is unrelated to the injury report, you may find your business cited for retaliation.

Copyright Holland & Hart LLP 1995-2016.

ACA Notice Requirements, Big Data Analytics, OSHA Retaliation Final Rule: Employment Law This Week – October 24, 2016 [VIDEO]

ACA Notice RequirementACA Section 1557 Notice Requirements Take Effect

Our top story: The Section 1557 ACA Notice Requirements have taken effect. Section 1557 prohibits providers and insurers from denying health care for discriminatory reasons, including on the basis of gender identity or pregnancy. Beginning last week, covered entities are required to notify the public of their compliance by posting nondiscrimination notices and taglines in multiple languages.

Final Rule on ACA Issued by OSHA

The Occupational Safety and Health Administration (OSHA) has issued a final rule for handling retaliation under the Affordable Care Act (ACA). The ACA prohibits employers from retaliating against employees for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. The ACA also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms in the ACA. OSHA’s new final rule establishes procedures and timelines for handling these complaints. The ACA’s whistleblower provision provides for a private right of action in a U.S. district court if agencies like OSHA do not issue a final decision within certain time limits.

EEOC Discusses Concerns Over Big Data Analytics

The Equal Employment Opportunity Commission (EEOC) is fact-finding on “big data.” The EEOC recently held a meeting at which it heard testimony on big data trends and technologies, the benefits and risks of big data analytics, current and potential uses of big data in employment, and how the use of big data may implicate equal employment opportunity laws. Commissioner Charlotte A. Burrows suggested that big data analytics may include errors in the data sets or flawed assumptions causing discriminatory effects. Employers should implement safeguards, such as ensuring that the variables correspond to the representative population and informing candidates when big data analytics will be used in hiring.

Seventh Circuit Vacates Panel Ruling on Sexual Orientation

The U.S. Court of Appeals for the Seventh Circuit may consider ruling that Title VII of the Civil Rights Act of 1964 (Title VII) protects sexual orientation. On its face, Title VII prohibits discrimination only on the basis of race, color, religion, sex, or national origin, and courts have been unwilling to go further. In this case, the Seventh Circuit has granted a college professor’s petition for an en banc rehearing and vacated a panel ruling that sexual orientation isn’t covered. Also, an advertising executive who is suing his former agency has asked the Second Circuit to reverse its own precedent holding that Title VII does not cover sexual orientation discrimination. We’re likely to see more precedent-shifting cases like these as courts grapple with changing attitudes towards sexual orientation discrimination.

Tip of the Week

October is Global Diversity Awareness Month, and we’re celebrating by focusing on diversity in our tips this month. Kenneth G. Standard, General Counsel Emeritus and Chair Emeritus of the Diversity & Professional Development Committee, shares some best practices for creating an inclusive environment.

©2016 Epstein Becker & Green, P.C. All rights reserved.

OSHA to Employers: No Gagging Whistleblowers!

OSHA whistleblowersOn September 9, 2016, the United States Occupational Safety and Health Administration (“OSHA”) published new guidelines for approving settlements between employers and employees in whistleblower cases to ensure that those agreements do not contain terms that could be interpreted to restrict future whistleblowing. OSHA reviews settlements between employees and employers to ensure that they are fair, adequate, reasonable, and in the public interest, and that the employee’s consent was knowing and voluntary. The guidance provides that OSHA will not approve settlement agreements that contain provisions that discourage (or have the effect of discouraging) whistleblowing, such as:

  • “Gag” provisions that prohibit, restrict, or otherwise discourage an employee from participating in protected activity, such as filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government. These constraints often arise from broad confidentiality or non-disparagement clauses, which complainants may interpret as restricting their ability to engage in protected activity. The prohibited constraints may also be found in provisions that:

    • restrict the employee’s right to provide information to the government, file a complaint, or testify in proceedings based on a respondent’s past or future conduct;

    • require an employee to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct;

    • require an employee to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employee has violated the law; and/or

    • require an employee to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency.

  • Provisions providing for liquidated damages in the event of a breach where those provisions are clearly disproportionate to the anticipated loss to the respondent of a breach, the potential liquidated damages would exceed the relief provided to the employee, or whether, owing to the employee’s position and/or wages, he or she would be unable to pay the proposed amount in the event of a breach.

When OSHA encounters these types of provisions, it will ask the parties to remove those provisions and/or prominently place the following statement in the settlement agreement: “Nothing in this Agreement is intended to or shall prevent, impede or interfere with the complainant’s non-waivable right, without prior notice to Respondent, to provide information to the government, participate in investigations, file a complaint, testify in any future proceedings regarding Respondent’s past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency.”

© Copyright 2016 Squire Patton Boggs (US) LLP

OSHA Issues Special Zika Guidance to Employers

Zika VirusThe Occupational Safety and Health Administration has issued “interim guidance” to provide employers and workers information and advice on preventing occupational exposure to the mosquito-borne Zika virus.

The guidance’s recommended actions (Control & Prevention) for employers and general outdoor workers include the following:

  • Employers should inform workers about their risks of exposure.
  • Employers should provide workers insect repellants and encourage their use. Workers should use the repellants.
  • Employers should provide workers with clothing that covers their hands, arms, legs, and other exposed skin and encourage them to wear the clothing. They also should consider providing workers with hats with mosquito netting that covers the neck and face. Workers should wear the provided clothing, as well as socks that cover the ankles and lower legs.
  • In warm weather, employers should encourage workers to wear lightweight, loose-fitting clothing, which provides a barrier to mosquitos. Workers should wear this type of clothing.
  • Employers and workers should eliminate sources of standing water (e.g., tires, buckets, cans, bottles, and barrels), which are considered mosquito breeding areas. Employers should train workers to recognize the importance of getting rid of these breeding areas at worksites.
  • If requested, employers should consider reassigning to indoor tasks any female worker who indicates she is pregnant or may become pregnant, as well as any male worker who has a sexual partner who is pregnant or may become pregnant. Workers in these circumstances should talk to their supervisors about outdoor work assignments.
  • Workers should seek medical attention “promptly” if symptoms from infection develop.

Employers and workers in healthcare and laboratory settings are advised to follow good infection control and biosafety practices (including universal precautions) as appropriate and specific biosafety guidance from the Centers for Disease Control and Prevention for working with the Zika virus in the laboratory.

OSHA also noted that mosquito control workers may require additional precautions — more protective clothing and enhanced skin protection — beyond those recommended for general outdoor workers. Workers who mix, load, apply, or perform other tasks involving wide-area (or area) insecticides may need additional protection to prevent or reduce exposure to hazardous chemicals. When applying insecticides, these workers may require respirators, worn in accordance with OSHA’s respirator standard.

For employers of workers with suspected or confirmed Zika virus, OSHA recommends “general guidance.” This includes making certain supervisors and potentially exposed workers know about Zika symptoms, training workers to receive immediate medical attention after suspected exposure, and considering options for providing sick leave during the infectious period.

Employers with workers who travel to or through Zika-affected areas, such as travel industry employees, airline crews, and cruise line workers, the agency recommends following certain “precautions” outlined by the CDC, including flexible travel and leave policies and delaying travel to Zika-affected areas.

Jackson Lewis P.C. © 2016

Huge Increase In OSHA And Certain MSHA Fines Announced

MSHA OSHAOSHA announced an increase to its penalties today of nearly 80 percent and some MSHA fines will increase by several thousand dollars as well.  The new civil penalty amounts, courtesy of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, are applicable only to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015.

OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78 percent. The top penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.

MSHA’s penalties will increase in some areas and decease in others.  The new minimum penalty for a 104(d)(2) Order will be $4,553 rather than $4000 and the maximum penalty for a flagrant violation will rise to $250,433 from $242,000.  However, the maximum penalty for most other MSHA violations will decrease to $68,300 from $70,000.

Fact Sheet on the Labor Department’s interim rule is available here. A list of each agency’s individual penalty adjustments is available here.

OSHA Issues New Illness and Injury Recordkeeping Rule That Casts Doubt upon Commonplace Employer Drug Testing and Safety Incentive Policies

osha-logoAnnouncing a series of requirements that will begin to take effect August 10, 2016, OSHA released, on May 11th, its final rule to “modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards.” Tellingly, OSHA acknowledges in its accompanying press release that the rule is intended to “nudge” employers to enhance methods to prevent workplace injuries and illnesses. Apparently, OSHA is proceeding under the assumption that all employers, regardless of past safety history, require an external push to enhance workplace safety efforts. Included within the rule are a number of alarming pronouncements—discussed more fully below—regarding routine employer safety practices such as drug testing and incentive policies that may necessitate changing long-established routines.

Overview of the New Injury and Illness Recording and Reporting Requirements

Signaling a stark departure from traditional injury recording and reporting practices whereby employers track and maintain such information internally, the new rule will require thousands of employers to electronically submit these records to OSHA each year. OSHA will then publish this data online in a format that anyone with access to the internet—including competitors, prospective employees, shareholders, union organizers and disgruntled former employees—can presumably search, filter and copy for their own use, including further public dissemination. The data submission obligations will be phased in over two years, as employers with 250 or more employees must submit the required 300A Annual Summary by July 1, 2017, and employers with 20 to 249 employees in “high-hazard” industries must submit their 2016 and 2017 300A Summaries by July 1, 2017 and 2018, respectively.

Employers operating in State Plan states are covered, too, as the OSHA-approved state programs must adopt “substantially identical” requirements within six months. Accordingly, employers in California, Connecticut, Indiana, Maryland, Michigan and Virginia—among others—should begin preparations to comply with the new rule.

Although a portion of the rule does not go into effect until next year, employers must comply beginning August 10, 2016 with requirements relating to employee involvement in employer recordkeeping systems and discrimination/retaliation prevention. Although much of the attention paid to the new rule has focused on the electronic submission requirements, OSHA’s commentary surrounding the discrimination prohibition suggests that this section may ultimately force employers to make changes to long-standing practices surrounding post-accident drug testing and safety incentive efforts.

The employee involvement portion of the rule, set forth at 29 C.F.R. § 1910.35, explicitly requires employers to “inform each employee how he or she is to report a work-related injury or illness” and “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” A procedure is not reasonable, according to the new rule, if it would “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” Further, employers must inform employees that they have the right to report injuries and illnesses, in addition to advising them that their employer is “prohibited from discharging or in any manner discriminating against [them] for reporting work-related injuries or illnesses.”

OSHA Takes Aim at Post-Injury Drug Testing and Safety Incentive Policies

Taking a position in the final rule that is sure to alarm a wide range of employers, OSHA announced that “blanket post-injury drug testing policies deter proper reporting” of injuries. Although the rule does not make across-the-board drug testing a per se violation, OSHA instructs employers to utilize post-injury drug testing only where “there is a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness,” and only where “the drug test can accurately identify impairment caused by drug use.” OSHA suggests that employees who report bee stings, repetitive strain injuries or other injuries where drug use could not reasonably have contributed to the occurrence, should not be tested. Creating greater uncertainty, OSHA warns employers that even when the decision to conduct a post-injury drug test is reasonable, the agency may nevertheless conclude that the testing unlawfully deterred injury reporting and constituted retaliation if the drug testing procedure itself is punitive or embarrassing to the employee, whatever that means.

OSHA recognizes, however, that employers that conduct post-accident testing mandated by federal regulations (e.g., interstate transportation) or pursuant to state workers’ compensation laws, many of which include “drug-free workplace” incentive programs, are not affected by the new rule. As such, an employer’s efforts to comply with applicable federal regulations or state laws will not be viewed as retaliatory.

The new rule similarly takes aim at another behavior the agency has long sought to discourage—employer safety incentive and disincentive policies and practices. While this will not come as a surprise to most employers (particularly those who recall the “Fairfax Memo” issued in March, 2012, see https://www.osha.gov/as/opa/whistleblowermemo.html), the language found in the rule will likely force many employers back to the drawing board in an effort to develop new policies intended to enhance workplace safety without incurring the wrath of OSHA. In the meantime, employers would be well advised to avoid using an incentive program to “take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work related injury or illness.” One would assume that this could encompass the month-end pizza party promised to employees if there are no recordable injuries and then abruptly canceled because an employee reports an injury.

In contrast, OSHA instructs that if “an incentive program makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules rather than whether they reported any injuries or illnesses, the program would not violate this provision.” The rule thus favors positive reinforcement, such as paying a bonus for serving on a safety committee or submitting a safety suggestion adopted by the company, at the same time that it prohibits the imposition of consequences for engaging in protected activities such as reporting an illness or injury.

What Should You Do Now?

  • Consider modifying your drug and alcohol testing policies to allow for discretion on obvious cases in which drug use or testing are clearly unrelated to an employee’s injuries and revisit the reasonableness of your drug testing procedures with your employment attorney. Be mindful, however, that with discretion comes the potential for inconsistent application of the policies and follow-on disparate treatment claims.

  • Examine your safety incentive and disincentive policies and practices with a critical eye, asking whether the policies and/or practices could be perceived as deterring or discouraging employees from reporting an injury or illness. Certain management bonus plans may similarly be viewed as incentivizing managers to discriminate against employees who report illnesses and injuries if the effect of doing so negatively impacts the manager’s bonus eligibility (i.e., where the bonus is tied to the OSHA recordable rates). If the potential for either conclusion exists, consider discontinuing or revising those policies and/or practices.

  • Begin preparations to switch from paper-based recordkeeping methods to an electronic system compatible with OSHA’s data submission portal.

  • Train the individuals responsible for injury and illness recordkeeping and reporting so they fully understand the new rule.

Article By Aaron R. GelbJ. Kevin HennessyCaralyn M. Olie & Thomas H. Petrides of Vedder Price

© 2016 Vedder Price