In its new podcast series, Employment Law This Week has released an extended Monthly Rundown, discussing some of the most important developments for employers in June 2019.
This episode includes:
- Worker Classification in the Gig Economy
- NLRB Announces Rulemaking Agenda
- National Backlash Builds Against Non-Compete Agreements
- Tip of the Week: Compliance with New Jersey’s Equal Pay Act
By the national OSHA Practice Group at Epstein Becker & Green
As we closed the book on 2013 -- a truly remarkable year of OSHA enforcement and regulatory activity -- we look to the future, and think about what to expect from OSHA in 2014. Over the next couple of weeks, we will roll out what we believe are the 5 most significant OSHA developments to monitor in 2014.
If you are interested in how accurate our past predictions have been, take a look at these articles from December 2011 forecasting five OSHA developments for 2012 and from December 2012 predicting three developments from OSHA in 2013.
Without further ado, here are the 5 OSHA-related developments you should anticipate in 2014, so says the collective wisdom of the national OSHA Practice Group at Epstein Becker & Green:
1. A Busy OSHA Rulemaking Docket
Although OSHA enforcement has reached levels never seen before by every measure, rulemaking activity under the current Administration has been slow. During President Obama’s first term, OSHA identified numerous rulemaking initiatives in its periodic Regulatory Agenda updates, including rules for combustible dust, Crystalline Silica, Beryllium, and an Injury and Illness Prevention Program (I2P2) rule. All of these proposed rules, however, missed important rulemaking deadlines or were completely set-aside. We expect that to change in 2014 and for the balance of this Administration, as the OSHA leadership team will strive to leave their legacy.
Just as we saw OSHA deemphasize rulemaking in the year leading up to the 2012 Presidential election, we are already seeing signs of a typical post-election, second term, aggressive rulemaking calendar from OSHA. The first sign of the new rulemaking push could be seen in speeches by David Michaels, the Assistant Secretary of Labor for OSHA, who characterized the proposed I2P2 rule as his and OSHA’s “highest priority.” Second, OSHA recently issued its Fall 2013 Regulatory Agenda, which, as we expected, returned several rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar. Finally, OSHA has also introduced new rules, such as a proposed rule to require employers to proactively report to OSHA injuries and illnesses, not just record them on the 300 Log. Check out our article about a burdensome new Injury & Illness Reporting Rule advanced by OSHA. Other important rules in the proposed or pre-rule stage to monitor in the coming year include:
- Occupational Exposure to Crystalline Silica (comments and hearings coming due early in 2014)
- Request for Information about the Process Safety Management Standard (including a reevaluation of the exemption of above ground atmospheric storage tanks)
- Walking Working Surfaces and Personal Fall Protection Systems (now in the Final Rule stage)
- Review/Lookback of OSHA Chemical Standards (an effort to make wholesale changes to existing chemical exposure limits)
2. OSHA Will Focus on Temporary Worker Safety
The treatment of temporary workers is expected to become more significant as the Affordable Care Act (“ACA”) is implemented, particularly when the “Employer Mandate” kicks in. The ACA will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. This will result in employers using more part-time workers and hiring more contractors; i.e., workers who will not be counted towards the 50-worker minimum for ACA coverage. Both qualities are commonly associated with “temporary workers.”
With an expected increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014, and has already launched a Temporary Worker Initiative. OSHA’s stated goals for the Temporary Worker Initiative are to:
- Protect temporary workers from workplace hazards;
- Ensure staffing agencies and host employers understand their safety & health obligations; and
- Learn information regarding hazards in workplaces that utilize temporary workers.
To achieve these goals, OSHA is developing outreach materials (such as fact sheets and webpages), and will use a combination of enforcement and training, but based on OSHA’s track record, we expect this will involve mostly enforcement. OSHA’s director of enforcement programs already issued a memorandum to its Regional Administrators instructing them to increase efforts to investigate employers’ use and protection of temporary workers. This side of the Temporary Work Initiative is already showing results. In the last quarter of FY 2013 alone, OSHA issued citations at 262 worksites where temporary workers were allegedly exposed to safety and health violations. Additionally, OSHA has conducted more than twice as many inspections of staffing agencies this year as it did last year. This trend will undoubtedly continue in 2014, so it is critical for host employers and staffing agencies to understand the dividing line of responsibility for addressing hazards to which temporary workers are exposed.
3. Hazard Communication Comes Into Focus
December 1, 2013 marked the first key implementation deadline of OSHA’s Hazard Communication standard, which was recently amended to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals.
Last month, the Occupational Safety and Health Administration (“OSHA”) put out a press release announcing a proposed new rule that would significantly increase employers’ injury and illness recordkeeping and reporting responsibilities. OSHA first submitted its proposal to the Office of Information and Regulatory Affairs (“OIRA”) two years ago, on November 22, 2011, but OIRA did not approve the proposed rule to advance through the rulemaking process until last month.
In essence, 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 (“BLS”) for survey purposes.
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. Dr. David Michaels, the Assistant Secretary of Labor for OSHA, has expressed publicly that “[t]his is not an enforcement initiative,” but employers are rightfully concerned about the ramifications of this new proposed rule.
OSHA’s Current Reporting Practices
Currently, OSHA compels employers to report a workplace injury or illness to OSHA or to produce injury and illness recordkeeping data to OSHA or the BLS in only four circumstances:
- the injury or illness results in death or the overnight hospitalization for more than observation of three or more employees;
- the recordkeeping data (e.g., OSHA 300 logs, 300A Annual Summaries, or 301 incident reports) is requested or subpoenaed during an enforcement inspection by OSHA at the employer’s workplace;
- the recordkeeping data is requested pursuant to OSHA’s Data Initiative Survey specific to certain industries with high rates of occupational injuries and illnesses; and
- recordkeeping forms are requested by BLS for its Survey of Occupational Injuries and Illnesses, for which a select few representative employers are requested to participate each year.
In conjunction with the new rulemaking, OSHA claims that these four outlets for the Department of Labor to acquire injury and illness data are insufficient because the information is generally not collected timely, is too limited in scope, and is often not establishment-specific. OSHA believes that the proposed rule, detailed below, would resolve these so-called insufficiencies.
Provisions of the Proposed Rule
OSHA’s new Recordkeeping rule proposal contains three major provisions:
- Requirements for Large Employers (250+ Employees): If implemented, the new rule will require employers who had 250 or more workers (including full-time, part-time, temporary, and seasonal workers) at peak employment during the prior calendar year 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. Employers will submit this information through a secure website using direct data entry into a template form or by uploading electronic documents already maintained by the employer. Approximately 38,000 private employers nationwide would be covered by this provision, and OSHA predicts the cost to each of these employers would be only approximately $183 per year.
- Requirements for Small Employers (20+ Employees): 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. Employers will submit this information through the same secure website using direct data entry or through a batch file upload. This portion of the proposed rule projects to impact approximately 441,000 employer establishments, and OSHA estimates the cost at only approximately $9 per employer per year.
- Requirements for All Employers: Under the proposed rule, any employer who receives notification of a request from OSHA must submit information from its injury and illness records (i.e., 300 Logs, 301 forms, and 300A Annual Summaries) for the time periods specified in OSHA’s notification. This provision only requires submission after notification by OSHA. Through this provision, OSHA intends to collect data specific to certain industries or hazards.
Dr. Michaels has stated that the information collected from employers through these three data-collection provisions will be used to help employers better identify and eliminate hazards, determine where OSHA’s consultation and educational resources should be focused, and direct inspection priorities. OSHA has also suggested that the proposed rule imposes only a slight burden on employers, because those subject to the proposed rule are already required to record the information now being demanded for production.
We anticipate, however, that the new reporting requirements and publication of employers’ records as set forth in the proposed rule will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community.
Top 5 Impacts to Industry From the Proposed Recordkeeping Rule
- Unforeseen (Grossly Underestimated) Costs of Compliance: We are deeply concerned about the inaccuracy of OSHA’s cost estimates around this rule. In addition to the burdensome steps outlined in the rule, the proposed rule will likely require employers to take additional steps outside of those described by OSHA to comply. For instance,
OSHA during the first term of the Obama Administration featured a heavy focus on enforcement, at the expense of compliance assistance, and despite a lot of talk, also at the expense of any meaningful new rulemaking activities. There are signs now, however, that OSHA may be renewing a push for a more active rulemaking calendar during the Administration’s second term.
The first sign has been a series of speeches and public statements by OSHA’s Administrator, Dr. David Michaels, in which he has characterized the development of a proposed Injury and Illness Prevention Program (I2P2) rule as his and the Agency’s “highest priority.” The I2P2 rule is being designed to compel employers to “find and fix” hazards, and would have significant implications for employers across all industries. During a presentation at a safety conference in June, Michaels explained that “I2P2 would require employers to have an ongoing, investigative, preventative process in place instead of being reactive and addressing problems after an accident occurs.” OSHA's leadership characterizing the I2P2 rule is a top priority is not new, but now that we are passed the 2012 Presidential Election, actual movement on the proposed rule is realistic.
Second, we are hearing that the Department of Labor’s Spring Regulatory Agenda is expected to return several OSHA rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar. For the moment, we are left only to guess about that active rulemaking calendar because the Department of Labor is once again significantly overdue, already by two months, publishing the Regulatory Agenda. Congressional Republicans have criticized the Agency’s lack of transparency resulting from the delay, claiming the Administration is playing a game of regulatory hide-and-seek.
Finally, although OSHA has not made an official announcement yet, sources report that OSHA will soon promote Dorothy Dougherty, current Director of OSHA’s Directorate of Standards and Guidance, as its new Deputy Assistant Secretary, the most senior career position within OSHA. Ms. Dougherty will replace former Deputy Assistant Secretary Richard Fairfax, who retired in early May of 2013. This move is significant because, as her most recent title indicates, Ms. Dougherty’s long career at OSHA has included a heavy focus on the development of workplace standards, regulations, and guidance, and therefore may be another sign that OSHA plans to prioritize rulemaking over the balance of the Obama Administration’s time in office.
Ms. Dougherty began her career with OSHA in 1992 as Chief of the Compliance and Technical Guidance Division (another non-enforcement role) for the Office of the Federal Agency Programs. Since that time, Ms. Dougherty has assumed several other leadership positions within the Agency, many of which focused on rulemaking and compliance assistance. She has served nearly seven years in her current position as Director for the Directorate of Standards and Guidance. Ms. Dougherty is well-liked within the Agency and has received high praise from current and former peers for her managerial skills and ability to work collaboratively with others, including appointed officials from both sides of the aisle.
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.
By Eric Conn, Head of the OSHA Practice Group
We recently had an article published by the Washington Legal Foundation entitled "OSHA Continues Trend of Informally Imposing New Rules." The article expanded on an earlier post here on the OSHA Law Update Blog regarding OSHA's attempts to circumvent Formal Notice and Comment Rulemaking by changing regulatory requirements through interpretation letters, directives, and enforcement memoranda. Here is a link to the original post.
Below is an excerpt from the expanded article, published this week in Washington Legal ...
By Eric J. Conn, Head of the OSHA Practice Group
The deadline passed last week for OSHA to appeal a recent decision by an Administrative Law Judge (“ALJ”) that struck down OSHA’s attempt to expand its Personal Protective Equipment (“PPE”) standard by way of an enforcement memorandum that mandated oil and gas employers ensure their employees don flame retardant clothing (“FRC”) during drilling operations (OSHA's “FRC Memo”). The Judge ruled that the FRC Memo constituted “improper rulemaking under the aegis of an enforcement standard.” See Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012). The Occupational Safety and Health Review Commission (“Review Commission”) also declined to independently take-up the decision for review, so the ALJ’s decision is now officially a Final Order of the Review Commission.
The ALJ’s decision represents a meaningful victory for employers as it relates to any PPE enforcement action, not just those related to FRC. The ALJ chastised OSHA for attempting to circumvent the formal notice and comment rulemaking process required by the Administrative Procedure Act (“APA”), by issuing the FRC Memo rather than amending its regulations. Although OSHA did not appeal the Judge’s ruling, the Agency has expressed, through both words and actions, disagreement with the Judge’s ruling.
The Petro Hunt case arose out of an October 15, 2010 OSHA inspection at an oil production worksite in North Dakota, after the Sherriff’s Department notified the Agency that a fire engulfed a treater shed. Following the inspection, OSHA cited the employer for allegedly failing to provide and require employees to wear FRC. The employer contested the citation, and a hearing was held before ALJ Patrick Augustine in November 2011. In this case of first impression, the ALJ concluded that the FRC Memo did not simply interpret the standard but, rather, amounted to a new standard that should have been subject to the formal rulemaking process under the APA.
Judge Augustine reasoned that the FRC Memo transformed the PPE standard from a “performance-based” standard – which grants employers reasonable discretion to assess the nature of hazards at their workplaces and select appropriate PPE to address those hazards – into a specification standard – in this case, an obligation to provide a specific form of PPE (flame retardant clothing), during oil and gas operations “regardless of the particular circumstances that may be present at any individual facility.” In striking down the FRC Memo, the Judge stated:
Complainant cannot ‘require’ anything more than what is authorized by the regulations. If [the Secretary of Labor] wishes to specifically require that FRC be worn in all instances at oil and gas operations, then she must report to the required notice and comment rulemaking process. Otherwise, [OSHA] must independently prove in each case that Respondent had actual notice, or that a reasonable person in Respondent’s position would have recognized a hazard requiring the use of FRC.
The ALJ also rejected OSHA’s argument that the Review Commission should grant deference to OSHA’s interpretation in the FRC Memo, because, Judge Augustine explained, the interpretation was “unreasonable and inconsistent” with established regulations. The ALJ proceeded to vacate the citation, reasoning that OSHA failed to establish that the employer had actual notice of a need for FRC at the inspected worksite, or that a reasonable person familiar with the circumstances and industry would have recognized the existence of a flash fire hazard. To support his decision, the ALJ highlighted the following facts:
- OSHA’s failure to establish that flash fires were a hazard at the worksite;
- None of the employer’s employees suffered injuries due to fires in the previous two years; and
- The employer conducted a thorough hazard assessment, and reasonably concluded that engineering and administrative controls (methods of addressing hazards generally preferred over reliance on PPE), adequately addressed any potential fire hazard.
By Eric J. Conn
In what seems to be a trend, OSHA has again delayed its rulemaking process for an Injury and Illness Prevention Program (commonly known as I2P2) standard. The announcement came during a National Advisory Committee on Occupational Safety and Health meeting in late June. According to OSHA officials, we should not expect the next rulemaking phase, a small business review process, to begin until at least Labor Day. I2P2 programs, which aim to reduce workplace injuries by requiring employers to proactively find and fix workplace hazards, have been on OSHA’s regulatory ...
OSHA’s keen interest in enforcement related to combustible dust shows no sign of waning as we close the door on 2011. OSHA’s Combustible Dust National Emphasis Program (NEP), initiated in 2008, continued in earnest through 2011, and notably, has no expiration date. The number of violations and the size of civil penalties arising out of the Combustible Dust NEP inspections continue to rise, and OSHA points to that data as support for its active pursuit of a comprehensive Combustible Dust Standard.
Combustible Dust NEP:
OSHA launched ...
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