On May 19, 2020, the U.S. Department of Labor issued two COVID-19 related Enforcement Memos to provide updated guidance to OSHA investigators: (1) Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (“Revised Recordkeeping Guidance”), which reinstates employers’ recordkeeping obligations for COVID-19 cases (29 CFR Part 1904) and (2) Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (“Updated Enforcement Response Plan Guidance”), which generally returns to pre-COVID investigation ...
On April 13, 2020, the Occupational Safety and Health Administration (‘OSHA”) of the U.S. Department of Labor issued a guidance memorandum (“Memorandum”) to its Area Offices and compliance safety and health officers for handling COVID-19 referrals, complaints, and severe illness reports.
The Memorandum articulates the procedures OSHA will use to prioritize enforcement responses, and details measures for protecting OSHA employees from the workplace hazard of SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), i.e., the virus causing the current ...
As we previously reported in our “Summary of OSHA Guidance on Preparing Workplaces for COVID-19,” the U.S. Department of Labor (“DOL”) has provided detailed directions for employers with respect to ensuring an OSHA-compliant workplace during the COVID-19 pandemic. On April 10, 2020, the DOL issued a memorandum providing interim guidance on enforcement of OSHA’s recordkeeping requirements (29 CFR Part 1904) as they relate to recording cases of COVID-19. The memorandum, which is “intended to be time-limited to the current public health crisis,” became effective ...
As previously discussed, OSHA has been carefully scrutinizing the health care industry lately. And on June 25, 2015, OSHA officially introduced a new compliance nightmare for the inpatient health care and nursing home industries by announcing the details of the agency’s new health care enforcement initiative in a memorandum from Dorothy Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety and Health, to OSHA Regional Administrators and State Plans. The memorandum is entitled “Inspection Guidance for Inpatient Healthcare Settings” (“guidance ...
President Obama’s recent budget proposal to Congress includes a proposed $592.1 million budget for OSHA this fiscal year -- a 7 percent increase from fiscal 2015. Although gaining approval of the proposal will surely be an uphill battle, which may be insurmountable in light of opposition from Republican lawmakers who oversee the appropriations process, the content of OSHA’s budget justification provides strong signals of its agenda for the coming year.
First, OSHA seeks to add 90 full-time positions to the agency for fiscal 2016. Sixty of the new positions would be assigned to ...
Valerie Butera, Member of the Firm in the Labor and Employment practice, will present a complimentary webinar, hosted by Midwest Employers Casualty Company, on January 27 at 11:00 a.m. EST titled "OSHA Forecast: Developments to Watch in 2015 and Beyond."
This webinar will delve into OSHA issues that will impact a wide range of industries in 2015. In addition to a greater focus on enforcements and inspections, changes will occur for recording injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log as well as reporting changes of severe injuries or illnesses.
See below for a recording of my recent webinar, “OSHA Forecast: Developments to Watch in 2015 and Beyond.”As I discuss, in 2015, many more industries will for the first time be required by OSHA to record injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log. The reporting of severe injuries or illnesses is also changing, and we anticipate a greater focus on enforcements and inspections.
- Where we are now and the direction of OSHA in 2015
- Recording and recordkeeping requirements
- Whistleblowing and its impact on your business
- Preparing for ...
James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled "Hospitals' Heavy Lifting: Understanding OSHA's New Hospital Worker and Patient Safety Guidance."
The article, published in AHLA's Spring 2014 Labor & Employment publication, summarizes OSHA's new web-based "Worker Safety in Hospitals" guidance, explains how the guidance relates to OSHA's existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as well as an effective Safety and Health Management System.
The article goes on to forecast what OSHA's Hospital Safety guidance will mean in the future for employers in the healthcare industry, including:
- More Whistleblower Complaints;
- Heavier enforcement by OSHA;
- Increased enforcement by the Joint Commission; and
- Greater interest in safety and health related legislation.
Finally, the article provides recommendations for what hospital and health system employers can do now to prepare for these developments, including:
- Reviewing and digesting the new OSHA hospital patient and employee safety resource;
- Work with employees and/or contractors to improve Safe Patient Handling Programs and/or a Safety and Health Management Systems; and
- Prepare for more safety-related whistleblower complaints by setting up effective processes to quickly investigate and address complaints and employee injuries and illnesses.
Below are some excerpts from the article:
On January 15, 2014 the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) launched a new online resource to address both worker and patient safety in hospitals.
According to OSHA, a hospital is one of the most dangerous places to work, as employees can face numerous serious hazards from lifting and moving patients, to exposure to chemical hazards and infectious diseases, to potential slips, trips, falls, and potential violence by patients—all in a dynamic and ever-changing environment. . . .
Happy Holidays and Happy New Year to all of you, and Happy 1st Anniversary to the OSHA Law Update blog. On December 20th, we celebrated our first full year of updates and articles (56 of them) about important OSHA Law topics here on the OSHA Law Update blog. We would hardly have the energy or enthusiasm to keep the OSHA Law Update current if it were not for all of the incredibly positive feedback, comments, and questions that we have received over the year from all of you. Thank you for that.
Just as we did last year, as the clock was winding down on a remarkable year of OSHA enforcement and other activity, it is time to take a look ahead to the new year, and offer our thoughts about what we can all expect from OSHA in 2013. Here is a link to our post from December 2011 in which forecasted 5 important OSHA developments for 2012 (a pretty accurate forecast in retrospect), and here are three developments we expect from OSHA in 2013:
1. Heavy-handed enforcement will continue to trend up:
During President Obama’s first term in office, OSHA consistently increased enforcement in every measureable way, year over year, and there is every reason to believe that trend will continue. OSHA’s budget increased early in President Obama’s first team, and that allowed OSHA to hire more than 100 new compliance officers. The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement. As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000’s during the Bush Administration to the mid-40,000’s through President Obama’s first term. Barring a prolonged trip over the Fiscal Cliff and actual implementation of sequestration, the trend of increasing enforcement personnel and increasing inspections will continue.
In addition to more frequent visits from OSHA, the OSHA leadership team also modified its Field Operations Manual for the purpose of driving up average and total penalties per inspection (i.e., by raising minimum penalties, average penalties, and eliminating penalty reductions available for size and safe history). As a result, the average per Serious violation penalty doubled from the Bush Administration (approx. $1,000 per violation) to the end of Obama’s first term (approx. $2,000 per violation). OSHA’s leadership team has expressed a goal of continuing to grow that average to approx. $3,000 per Serious violation. We also watched the frequency of enhanced citations (i.e., Willful and Repeat violations that carry 10x higher penalties) increase at a rate of more than 200%. Those changes, and other aggressive enforcement strategies by OSHA, have resulted in the Agency doubling the total number of “Significant” enforcement actions (cases involving penalties of $100,000 or more), and tripling the number of cases involving total penalties over $1M. That trend is also expected to continue.
The Democratic Party unveiled its Party Platform during President Obama’s Nominating Convention, and offered a glimpse into what we can expect from OSHA in 2013 and beyond.
The platform called for a focus on “continu[ing] to adopt and enforce comprehensive safety standards.” Many dubbed the 2012 a “status quo election,” which is probably right, and because the status quo at OSHA over the past four years has been a trend of increasing enforcement and focused rulemaking, that is precisely what we should expect from OSHA over the next four years.
Specifically, OSHA will continue to aggressively enforce its existing standards (i.e., increasing numbers of inspections, increasing penalties, and increasing publicity related to enforcement actions). We anticipate a doubling down on programs and strategies like:
- “Regulation by Shaming” (i.e., embarrassing and inflammatory enforcement press releases -- see our article about Regulation by Shaming in EHS Today);
- Severe Violator Enforcement Program;
- Increasing programmed inspections targeting special emphasis hazards and industries;
- More follow-up inspections and Repeat violations;
- Referring cases to the U.S. Attorney for potential criminal investigations and OSH Act criminal charges;
- More corporate-wide enforcement and settlements; and
- Less flexibility for employers in resolving cases with reasonable settlement positions.
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