As the clock ticked down and the apple dropped to start a new year, many of us reflected on the year that had passed and our resolutions and New Year's wishes for the upcoming year. Probably not many of you were thinking about your resolutions and New Year's wishes as they related to everybody's favorite regulatory agency, OSHA, so let us do that for you. Here are three New Year’s wishes about OSHA enforcement that the national OSHA Practice Group at Epstein Becker & Green hopes to see come true in 2014 for our clients and friends in Industry:
1. We wish for OSHA to drop or amend its proposed changes to the Injury & Illness Recordkeeping rule.
Late last year, OSHA proposed some major changes to its Injury and Illness Recordkeeping regulations. The proposed rule would transform the current Recordkeeping framework in which employers’ records of workplace injuries remained private to the employer unless: (i) OSHA requests them during an inspection at the workplace; or (ii) the employer receives a rare request for the recordkeeping data from OSHA or the Bureau of Labor Statistics in a special survey. Under the proposed rule, employers’ injury and illness data will become an open book, requiring the collection of larger amounts of data on work-related injuries and illnesses, as well as making much of that information public. Here are the major provisions of the proposed rule:
- Requirements for Large Employers: The new rule will require employers with 250 or more workers to submit to OSHA every quarter the individual entries on their OSHA 300 Logs and the information entered on each OSHA 301 Incident Report. OSHA would then post the data on its public website after redacting only injured employees’ identifying information.
- Requirements for Small Employers: The proposed rule would also require employers with 20 or more workers in designated industries to submit information electronically from their 300A Annual Summary forms to OSHA, which OSHA also intends to publicize.
We anticipate that the new reporting requirements and publication of employers’ injury records will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community, including: (i) extraordinary burden on employers to comply; (ii) more inspections and citations by OSHA; (iii) discourage employers from recording all recordable injuries; (iv) invasion of injured employees’ privacy; and (v) harm to employers’ reputations. The public perception of certain employers may be skewed because this reported information would be publicized. Specifically, under the proposed rule, OSHA would only make public the basic data provided in injury and illness recording forms. The public, therefore, could take the injury and illness data out of context, as the public would not be privy to the details behind injuries, safety measures employers adopt, how the data compares to industry averages, or any other relevant information related to the circumstances of the injury or illness. For more information about the proposed rule and its potential impacts, check out our article from last month.
Our New Year’s wish for the regulated community is that this rule not be implemented, or at least for the “publication” element of the rule to be stricken. OSHA is accepting public comments on the proposed rule as written and several alternatives published in the Federal Register. Considering the extensive impact the proposed rule will have on employers, industry participation in the comment stage of the rulemaking process, especially with the help of experienced OSHA counsel, will be essential in driving fundamental and necessary revisions to the proposed rule.
2. We wish for OSHA to change the way it implements the Severe Violator Enforcement Program to respect Constitutional Due Process.
As one would expect for a program designed for recidivists, the punitive elements of OSHA’s Severe Violator Enforcement Program (“SVEP”) are significant, including: (a) inflammatory public press releases branding employers as a “severe violators”; (b) adding employers’ names to a public log of Severe Violators; (c) mandatory follow-up inspections at the cited facilities; (d) numerous inspections (up to ten) at sister facilities within the same corporate enterprise; and (e) enhanced terms in settlements (such as corporate-wide abatement, requiring third party audits, etc.).
Our major frustration with the SVEP is not with the severity of the consequences, it is with the timing in which employers are “qualified” into the Program. As OSHA currently implements the SVEP, employers are qualified into SVEP before final disposition of the underlying citations. In other words, employers begin to face the harsh punishments before OSHA has proven that the employer violated the law at all, let alone in the egregious ways that qualify them for SVEP. We have written extensively about the SVEP here on the OSHA Law Update Blog. For more information, check out any of these articles.
Our New Year’s wish that OSHA amend the Severe Violator Enforcement Program to delay qualifying employers into the Program until the underlying qualifying citations become a Final Order of the OSH Review Commission. In the alternative, we wish for a Court to evaluate and strike down the Constitutionality of this element of SVEP.
3. We wish for OSHA to revisit its unlawful interpretation regarding participation in OSHA inspections by union representatives at non-union worksites.
Last year, OSHA issued a formal Interpretation Letter of its regulation governing who may participate in OSHA walkaround inspections (29 C.F.R. 1903.8(c) – Representatives of Employers and Employees). In the interpretation, OSHA expressed its belief that employees at a non-union worksite may authorize a third party affiliated with a union or community organization to act as the employees’ inspection representative. The plain language of the Standard makes it clear that such involvement by a third party union representative is not permitted under the law. Specifically, the standard provides:
“The representative authorized by employees shall be an employee of the employer. However, if in the judgment of the [CSHO], good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”
The interpretation moves away from a commonsense reading, and invites involvement in inspections by non-technical union representatives who have not been elected to represent the workforce. For more information about this development, check out our article from last year.
Having an outside union activist in your worksite during an inspection may strain employers’ abilities to cast their workplaces in the most favorable light, and provides access to the union of useful knowledge or relationships to facilitate an organizing campaign. Accordingly, employers should strongly consider asserting their right during OSHA inspections to exclude non-employee third parties (such as a union representative at a non-union workplace) from participating in the inspection process. We can do this by demanding and challenging a warrant. If confronted with such a situation, employers should consult with legal counsel before allowing any non-employee third party to participate in an OSHA inspection.
Until then, it is our New Year’s wish for employers that OSHA archive the new interpretation letter, and issue an appropriate interpretation of 1903.8(c) that excludes union representatives from non-union facilities during OSHA inspections.