Enforcement News & Trends
Disciplining employees for violating safety and health rules is a critical component of any good safety and health program. OSHA's recent policy on employee discipline for violating safety and health rules undercuts the use of such discipline and encourages employees to consider possible claims for retaliation. This policy states that employers should only enforce “legitimate safety and health rules" and sets forth a series of possible claims for employees challenging the discipline to consider. The claims provided include: (1) whether the discipline was proportional to the infraction, (2) whether it was consistently applied to other employees and (3) whether it was based on a vague rule.
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.
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 June 17, 2013, in its newsletter “OSHA QuickTakes”, OSHA reported that it has issued a national memorandum on exit routes directing field inspectors to carefully examine whether employers have provided and maintained adequate exit routes from work areas. This comes in response to a massive fire and explosion at a Chinese poultry processing plant on June 4, 2013, in which an estimated 119 employees perished. Survivors described workers struggling through smoke and flames to reach doors that turned out to be locked or blocked.
The memorandum directs compliance officers to pay particular attention to the following during an OSHA inspection: whether an adequate number of exit routes are provided, that the exit routes are free and unobstructed, and that exit doors are not locked.
Employers can take the following internal steps to ensure the safety of their employees and that they are in compliance:
On June 5, I had the privilege of speaking at the Texas Chemical Council’s Environmental, Health & Safety Seminar at the Moody Gardens Convention Center in Galveston, Texas. For those of you who were not able to join us, I have uploaded my slide presentation “Tips for Preparing for your OSHA PSM Inspection”.
A recently published OSHA Letter of Interpretation (the “Sallman Letter”) could have a profound effect on how OSHA inspections are conducted. According to the Sallman Letter, employees at a workplace without a collective bargaining agreement may designate a person affiliated with a union to act as their “personal representative” for OSH Act purposes. Employees may also designate these persons to act on their behalf as a walkaround representative during an OSHA inspection. This novel interpretation creates new threats to the protection of proprietary information, the risk of tort liability and opens the door to union organizing campaigns.
Last week, we discussed OSHA’s prohibition on rate-based, safety incentive programs (e.g., a year-end pizza party for no employee injuries). According to the agency, these programs actually encourage employees to underreport workplace injuries/illnesses and should be replaced instead with behavior-based programs that provide positive incentives for reporting.
Now we are starting to see OSHA enforce its policy on rate-based programs. According to a recent formal settlement agreement, the cited employer was not only required to eliminate its rate-based incentive programs, but retain a compensation/benefits expert to evaluate “alternate safety-based provisions in its Incentive and Bonus Programs.”
OSHA has become increasingly critical of traditional, rate-based safety incentive programs that, according to the agency, actually discourage employees from reporting workplace injuries. OSHA’s favorite example to use is the year-end pizza party for achieving low incidence rates – as OSHA’s argument goes, while seemingly harmless enough, employees are actually incentivized to withhold injury reports to get free pizza. Assistant Secretary of Labor for OSHA, David Michaels most recently highlighted the agency’s concerns over these programs in a February 4, 2013 OSHA Employees All-Hands Meeting, lumping them in with factors that “undermine a workplace culture of safety.”
Since there is no OSHA standard concerning incentive programs, it was unclear how the agency planned to enforce its policy on these “safety disincentive programs.” Fortunately, OSHA has offered guidance that not only informs employers how they may be cited, but how to tailor their safety programs to create positive incentives and avoid any citation, period.
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