In its budget proposal for Fiscal Year 2016 (“FY 2016”), the Obama Administration has asked Congress to increase civil penalties for violations of the Occupational Safety and Health Act (“OSH Act”). As the proposal notes, OSH Act civil penalties have been increased only once since the law was passed 44 years ago. In addition, the proposal urges Congress to apply the Federal Civil Penalties Inflation Adjustment Act to the OSH Act, which would increase the civil penalties to keep pace with inflation.
Agency News & Initiatives
On September 11, 2014, OSHA announced new requirements for the severe injury reporting rule. Employers will now be required to notify OSHA of all work-related in-patient hospitalizations, amputations and eye loss within 24 hours of their occurrence. Employers must still report work-related fatalities within 8 hours. The final rule becomes effective on January 1, 2015. This change will certainly lead to more inspections and permit OSHA (and the public) greater access to employers’ injury and illness data.
OSHA and the National Labor Relations Board (NLRB) have reached an agreement where OSHA will now refer untimely retaliation claims from its Whistleblower Division to the NLRB for review. An OSHA Memorandum from Assistant Secretary of Labor for OSHA, Dr. David Michaels provides greater detail on the inter-agency referral system. Under OSHA’s whistleblower provisions, employees have 30 days to file a complaint for employer retaliation. The NLRB, on the other hand, provides employees six months to file complaints regarding unfair labor practices. Because in OSHA’s and the NLRB’s view retaliation can be considered an unfair labor practice, the agencies’ agreement effectively circumvents OSHA’s 30 day statute of limitations and prolongs the life of employees’ stale whistleblower claims.
This past year, OSHA launched an enforcement initiative focused on improving safety for temporary workers. The initiative references an OSHA memorandum (the April Memo) from former Deputy Assistant Secretary Richard Fairfax, which serves as the initiative’s main enforcement mechanism, directing inspectors to identify temporary workers and evaluate whether they are exposed to any safety hazards.
As expected, we have seen a correlated rise in inspections that examine how host employers treat temporary workers, especially with regard to training. Fortunately, an April 2013 Memo from former Deputy Assistant Secretary Richard Fairfax and OSHA’s September 5, 2013 Update provide the blueprint for how inspectors will conduct their investigations. Moreover, OSHA’s webpage on the topic (Protecting Temporary Employees) supplements the April Memo by detailing what in OSHA’s view are the host employer’s responsibilities for temporary workers. Taken together, these documents provide a game plan so that employers ensure employees are properly trained and can successfully demonstrate compliance and avoid citations.
In a press release today, OSHA announced that the comment period for the Notice of Proposed Rulemaking on Occupational Exposure to Crystalline Silica will be extended 15 days from the original deadline of January 27, 2014 to February 11, 2014.
Stakeholders should go to www.regulations.gov to submit their comments electronically. The hearings on the proposed rule are still scheduled for March 18, 2014.
Recently, OSHA launched a high-profile effort to address its permissible exposure levels (PELs) for chemicals in the workplace. OSHA last attempted to update its PELs – which are over four decades old – via a rulemaking in 1989. But that effort failed after the Eleventh Circuit struck it down. This time, rather than initiating a rulemaking to lawfully update its standards, OSHA published “recommended” exposure levels on its website which are more stringent than their corresponding PELs.
On August 1, 2013, the U.S. Senate confirmed President Barack Obama’s nomination of Cynthia Attwood for commissioner on the Occupational Safety and Health Review Commission (OSHRC). This will be Ms. Attwood’s second term on the OSHRC, which will run until April 27, 2019.
Ms. Attwood’s confirmation restores a quorum in the OSHRC, allowing the independent agency to rule on cases under its review once again.
On July 3, 2013, the Obama administration released its spring 2013 regulatory agenda, which includes new deadlines for significant OSHA rulemaking. One of those new items includes OSHA’s proposed recordkeeping rule change, titled “Clarification of Employer’s Obligation to Make and Maintain Accurate Records of Work-Related Injuries and Illnesses.” The proposed rule is to be unveiled by November of this year.
Under the new rule OSHA will attempt to clarify that: (1) the duty to maintain accurate records of work-related injuries and illnesses is an ongoing obligation; (2) the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred; and (3) this duty will not expire even if the employer failed to make the necessary records in the first place. This is consistent with OSHA’s original interpretation of the OSH Act’s statute of limitations for injury and illness recordkeeping before the District of Columbia Circuit Court of Appeals rejected it in 2012.
President Obama’s nominee to head up the Dept. of Labor was confirmed today by the U.S. Senate on a party line vote, 54-46. Mr. Perez nomination has languished in the Senate for several months in part because of allegations of unprofessional and politicized behavior while Mr. Perez was Assistant Attorney General within the Dept. of Justice’s Civil Rights Division. At present it is unclear how Mr. Perez’ leadership will impact OSHA’s focus on enforcement. During his confirmation hearings, Mr.
ABOUT ARENT FOX LLP
Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.