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In what should be viewed as a victory for employers, the United States Circuit Court of Appeals for the Eleventh Circuit recently issued a decision limiting the scope of OSHA inspections. United States v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018).

In February 2016, an employee at Mar-Jac’s poultry processing facility was severely burned and hospitalized after attempting to repair an electrical panel.  Within days of Mar-Jac reporting the injury to OSHA, OSHA compliance officers visited Mar-Jac’s facility.  OSHA sought to inspect not only the accident site, but Mar-Jac’s entire facility.  Mar-Jac gave limited consent to inspection of the electrical accident site, but refused to permit inspection of any additional areas.

OSHA’s limited inspection revealed additional potential violations of electrical safety, personal protective equipment, machine guarding and other standards. OSHA also determined that the injuries reported on Mar-Jac’s OSHA 300 logs suggested additional possible violations covered by an OSHA Regional Emphasis Program (“REP”) that permits random “programmed” inspection of such facilities based on neutral criteria.

OSHA sought an administrative warrant from a federal magistrate judge to expand its inspection, arguing that it had probable cause to conduct a top-to-bottom inspection on three grounds: 1) the OSHA compliance officers had personally observed additional hazards during its limited inspection, (2) the OSHA 300 logs revealed additional potential hazards, and 3) probable cause existed to conduct a programmed inspection based on OSHA’s Poultry REP.  The District Court quashed the warrant, and OSHA appealed.

On appeal, OSHA argued that the District Court erred by applying a more stringent standard which purports to require OSHA to show that employees had been injured as a result of suspected violations.  OSHA also argued that the District Court conflated the terms “hazard” and “violation” and that OSHA had presented reasonable suspicion of additional violations based on Mar-Jac’s OSHA 300 logs.

The 11th Circuit affirmed the District Court’s ruling.  First, the Court held that the District Court correctly applied the reasonable suspicion standard and simply found that OSHA did not establish reasonable suspicion to inspect for the additional suspected hazards. Second, the Court rejected OSHA’s argument that “because there was an injury, there must have been a hazard, and because there was a hazard, there is likely a violation to be found.”  Rather, the Court affirmed that “the existence of a ‘hazard’ does not necessarily establish the existence of a ‘violation,’” and that OSHA must, when applying for a warrant, demonstrate reasonable suspicion that a violation (not simply a hazard) exists.”  Finally, after reviewing Mar-Jac’s OSHA 300 logs, the Court determined that the injury descriptions were vague and showed no common thread sufficient to justify a comprehensive inspection.

Mar-Jac (1) reinforces the notion that there are limits on OSHA’s inspection authority and (2) confirms the right of employers to limit consent to inspect or to challenge a warrant. OSHA cannot expand an accident-based inspection simply because of an emphasis program, injuries recorded on an OSHA 300 log, or the mere existence of a hazard. So, if faced with a request by OSHA to expand the scope of an accident-based inspection, employers should contact counsel immediately to determine an appropriate response.

On October 11, 2018, the Occupational Health and Safety Administration (OSHA) issued a memorandum clarifying its position regarding safety incentive programs and post-incident drug testing.

Two years ago, in October 2016, OSHA issued a memorandum that prohibited drug testing employees who reported injuries or illness unless there was an “objectively reasonable basis” for doing so. The rationale was that blanket post-accident drug and alcohol testing violated OSHA’s anti-retaliation provisions. OSHA’s prior guidance also implied that safety incentive programs were unlawful and could create a chilling effect and deter employees from reporting work-related injuries and illnesses.

With respect to post-incident drug testing, OSHA’s most recent memorandum clarifies that “most instances of workplace drug testing are permissible.” The memo specifically includes the following as types of drug testing policies that are not violative of OSHA’s anti-retaliation provisions:

  • Random drug testing
  • Drug testing unrelated to the reporting of a work-related injury or illness;
  • Drug testing under a state workers’ compensation law;
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule; and
  • Drug testing to evaluate the root cause of a workplace incident that caused injury or could have caused injury to employees. In this circumstance, employers must test all the employees whose conduct could have contributed to the incident, not just employees who made reports.

With respect to safety incentive programs, OSHA’s recent memorandum acknowledges that many safety programs do, in fact, promote workplace safety and health, including rate-based safety incentive programs focused on reducing the number of work-related injuries and illnesses as well as programs rewarding employees for reporting near-misses or workplace hazards. OSHA now takes the position that safety incentive programs are only retaliatory and unlawful if they seek to “penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

Employers should regularly review and update their safety incentive programs and drug testing policies to ensure compliance with the new OSHA guidance and business objectives, but now can be much more comfortable that legitimate safety incentive programs and post-accident drug testing policies will not result in citations.

Thanks to a recent federal appellate court decision, OSHA now has even more leeway to issue costly repeat citations to employers. As many employers know, there are different classifications for civil violations of OSHA regulations, including other-than-serious, serious, repeat, and willful. Penalties, both monetary and non-monetary, increase with higher classification levels. OSHA recently increased the maximum penalty for repeat violations to $129,336, and additional increases to the maximum penalty are expected. Click here to read the full client alert.

At this year’s National Safety Council (NSC) Congress & Expo in Indianapolis, OSHA’s Deputy Director of Enforcement Programs announced its preliminary list of the top ten citations issued for fiscal year 2017. OSHA’s top 10 violations for 2017 are as follows:

  1. Fall Protection in Construction (29 CFR 1926.501) 6,072 violations
    Frequently violated requirements include unprotected edges and open sides in residential construction and failure to provide fall protection on low-slope roofs.
  2. Hazard Communication (29 CFR 1910.1200) 4,176 violations
    Failure to have a written hazard communication program was the most frequently violated requirement, followed by failing to provide employee access to safety data sheets.
  3. Scaffolding (29 CFR 1926.451) 3,288 violations
    Frequent violations include improper access to surfaces and lack of guardrails.
  4. Respiratory Protection (29 CFR 1910.134) 3,097 violations
    Failure to establish a written respiratory protection program topped these violations, followed by failure to provide medical evaluations.
  5. Lockout/Tagout (29 CFR 1910.147) 2,877 violations
    Frequent violations were inadequate worker training and failure to conduct periodic inspections.
  6. Ladders in Construction (29 CFR 1926.1053) 2,241 violations
    Frequent violations include improper use of ladders, damaged ladders, and using the top step.
  7. Powered Industrial Trucks (29 CFR 1910.178) 2,162 violations
    Violations included inadequate worker training and refresher training.
  8. Machine Guarding (29 CFR 1910.212) 1,933 violations
    Exposure to/failure to guard points of operation topped these violations.
  9. Fall Protection—Training Requirements (29 CFR 1926.503) 1,523 violations
    The most frequent violations include failure to train workers in identifying fall hazards and proper use of fall protection equipment.
  10. Electrical—Wiring Methods (29 CFR 1910.305) 1,405 violations
    Violations of this standard included temporary writing in lieu of permanent wiring and were found in most general industry sectors, including food and beverage, retail, and manufacturing.

While OSHA’s top ten rankings vary little from year to year (2017’s top five violations remained the same), there is one new addition this year: Fall Protection – Training Requirements in the number 9 slot. The final report on the Top 10 violations for 2017 will be published in the December. Roughly 13,000 of these violations were in the construction industry, which is disproportionate to the employment in that industry compared with all others. This is likely reflective of the high turnover of employees and the number of employers who engage in construction work on an intermittent basis. The number of training and communication citations show the importance of paying attention to the administrative and paperwork regulations, and not just to the health and safety rules.

Orange Safety SignsOn January 13, 2017, the Occupational Safety and Health Administration issued Recommended Practices for Anti-Retaliation Programs, which are intended to allow employees to raise safety issues arising in the workplace without fear of retaliation. The 12-page document sets forth recommendations that apply to private and public employees protected by the more than twenty (20) whistleblower laws enforced by OSHA.

Some of the key items recommended by OSHA for an effective anti-retaliation program are:

  1. Management leadership, commitment, and accountability.
  2. System for listening to and resolving employees’ safety and compliance concerns.
  3. System for receiving and responding to reports of retaliation.
  4. Anti-retaliation training for employees and managers.
  5. Program oversight.

Further discussion of these key items may be found in the Recommended Practices. Employers should review these recommendations and the discussion surrounding them, as we anticipate that OSHA will review the items as part of any investigation or inspection.

There is much in the OSHA Guidance that is common sense, but there are several items included that employers will want to consider. They are reflected in the following quotes from the Guidance (emphasis supplied):

Employer policies must not discourage employees from reporting concerns to a government agency, delay employee reports to government, or require employees to report concerns to the employer first.

[Employers should…] Eliminate or restructure formal and informal workplace incentives that may encourage or allow retaliation or discourage reporting. Examples of incentives that may discourage reporting or encourage retaliation include rewarding employee work units with prizes for low injury rates or directly linking supervisors’ bonuses to lower reported injury rates.

Ensure that any employment agreement or policy that requires employees to keep employer information confidential does not prohibit or discourage employees from reporting or taking the steps necessary to report information reasonably related to concerns about hazards or violations of the law to any government agency. Steps that may be necessary include conferring with legal counsel, union or other worker representatives, or with medical professionals regarding the employee’s concerns. Employers should not use confidentiality or non-disclosure agreements to penalize, through lawsuits or otherwise, employees who report suspected violations of the law or take steps necessary to make such reports.

If possible, make the anti-retaliation investigation completely independent from the corporation’s legal counsel, who is obligated to protect the employer’s interests. If the employer’s legal representative is involved in conducting the investigation, fully inform the whistleblower that the investigator represents the employer’s interests and that any attorney-client privilege will only extend to the employer.”

To the degree that OSHA applies this Guidance in connection with investigations of alleged retaliation, employers should have a record that they considered and, to the degree applicable to their circumstances, adopted recommendations from it.

Work Injury Claim Form on desk with glasses and pen
Work Injury Claim Form on desk with glasses and pen

On November 28, 2016, the United States District Court for the Northern District of Texas denied industry employers’ efforts to enjoin OSHA from beginning to enforce portions of OSHA’s May 2016 final rule that purports to prohibit, among other things: 1) disciplinary action against employees for not immediately reporting work-related injuries or illnesses; and 2) blanket, automatic post-accident/injury drug and alcohol testing.

In May 2016, OSHA published a new record keeping rule that included, among other provisions, an express anti-retaliation prohibition. Commentary to OSHA’s final rule suggested that employer policies requiring immediate reporting of injuries could have a chilling effect on employees reporting slow-developing or chronic injuries or illnesses. According to OSHA, to be reasonable, the policies must allow for reporting within a reasonable time after the employee realizes that he or she has suffered a work-related injury instead of requiring reporting immediately following the occurrence of an injury. The Commentary also implied that post-incident drug or alcohol testing under a blanket policy could constitute prohibited retaliation. Instead, OSHA instructed employers to “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

The National Association of Manufacturers and similar industry groups and employers filed a lawsuit in the Northern District of Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D) shortly after the final rule was published, challenging the rule’s anti-retaliation provisions and seeking a preliminary injunction to prevent OSHA from beginning to enforce the provisions until the Court decided their underlying legal challenge. Although the original effective date for the rule had been August 10, 2016, OSHA voluntarily postponed its enforcement of the anti-retaliation provisions until December 1, 2016 to allow the Court to rule on the request for preliminary injunctive relief.

The Court has now denied the employers’ request for injunctive relief on narrow grounds, holding that the employers could not demonstrate immediate, irreparable harm if enforcement of the anti-retaliation rule became effective. The Court’s decision was limited to the element of irreparable harm, and did not reach the underlying merits of the claim that the new rule creates an unlawful enforcement scheme under OSHA. In short, the Court has allowed OSHA to implement the new rule without deciding whether the rule is valid.

The Texas District Court’s ruling means that OSHA’s regulations are now in effect, allowing OSHA to investigate complaints by employees who have suffered retaliation under blanket drug and alcohol testing policies or who have suffered adverse or disciplinary action for “late” injury reporting. In addition to ongoing litigation, additional complications may result from additional/different regulatory changes made by the incoming new presidential administration early next year. For now, however, OSHA’s regulations are fully in effect. They have not been “approved,” however, so employers cited under them are able to challenge the citation based upon the rules’ invalidity. Employers are urged to consult with counsel to determine whether immediate changes to their accident reporting and drug testing policies and programs are needed, and, of course, whenever they receive a citation under these rules.

 

 

Rule Also Has Potential Ramifications for Employers’ Post-Accident Drug-Testing Policies

OSHA recently released its Final Rule on the electronic recording and submission of injury and illness records. The Rule has several important provisions of which employers need to be aware, as well as some potential ramifications to long-standing employer practices.

Here are the basic requirements under the new Rule:

  • Employers with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from their OSHA 300, 300A, and 301 forms to OSHA
  • Employers with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must electronically submit information from their OSHA 300A forms to OSHA
  • All employers required to do so must still otherwise maintain their OSHA 300, 300A, and 301 forms at their respective establishments

Click here to read the full client alert.

On November 2, 2015, President Obama signed the Bipartisan Budget Act (the “Act”) of 2015 into law.  P.L. 114-74. The Act changes the Federal Civil Penalties Inflation Adjustment Act of 1990, enacted at 28 U.S.C. §2461. These little-noticed changes have huge ramifications because they specifically remove OSHA from the list of agencies that are exempt from having the ability to raise fines. In other words, before this new law, OSHA’s fines stayed the same until Congress changed them.  Now OSHA will raise them right away and will increase them every year.

The Act has a “Catch Up Adjustment” provision, which will allow OSHA to immediately increase its penalties by up to 150 percent no later than August 1, 2016. After the initial increase, OSHA will have to adjust its penalties annually based on the Consumer Price Index for the month of October. Experts say there will be an immediate expected increase anywhere from 52 percent to 80 percent. This means that fines for willful violations may increase from $70,000 up to $125,000, and fines for serious and other-than-serious violations may increase from $7,000 up to $12,500.

It is clear from this change that employers are at an even greater risk for substantial fines and penalties if and when OSHA opens an investigation in their workplaces. If you would like to speak to someone about how to prepare for an OSHA investigation, please contact our office.

We will continue monitoring for any updates from OSHA regarding the final rules implementing the Catch Up Adjustment, and any future annual adjustments to the penalties in place.

In 2010, OSHA began a program to identify certain employers as severe violators. Placement in the Severe Violator Enforcement Program (“SVEP”) resulted in adverse publicity, multiple inspections, inspections of other facilities and higher-than-normal penalties.  Not surprisingly, there were a number of criticisms of the program.  One of them was that the program had no established way to get off it.  OSHA has now issued formal guidance on this issue that can be found here.  OSHA’s Directorate of Enforcement Programs (“DEP”) has determined that employers can get out of the program after three years from the final disposition of the inspection items that resulted in placement in the SVEP.  Final disposition includes failures to contest the citation, settlements, unappealed Review Commission decisions, and Court of Appeals decisions.  To escape the SVEP, the employer must have fully abated all SVEP-related citations at any of its establishments.  All penalties must have been fully paid.  For cases with national corporate-wide settlements, the DEP will handle requests for removal, and will consider all terms of the settlement (which usually would include safety programs and outside consultancies. See the Guidelines for Administering Corporate-Wide Settlement Agreements, here)  For more local situations, the Regional Administrator or designee will have discretion to remove employers from the list.

This post was authored by Inna Shelley.

On June 21, the Occupational Safety and Health Administration (OSHA) and the National Institute of Occupational Safety and Health (NIOSH) issued a Hazard Alert addressing the health risks of exposure to airborne silica for workers employed on hydraulic fracturing, or “fracking” sites, in a process used to extract oil and gas. Sand used in fracking contains up to 99% silica.

Recent NIOSH field studies revealed that many fracking workers were overexposed to silica dust. Exposure often occurs during the transportation, on-site moving, and loading of sand into containers, belts, and blender hoppers. Although employees directly involved in these operations and those working downwind had the highest silica exposures, even upwind workers outside of the immediate areas had exposures above NIOSH-recommended levels.

Silica exposure poses many serious health risks including lung cancer and silicosis, a lung disease where lung tissue around trapped silica causes inflammation and scarring, hindering proper oxygen intake. Other diseases linked to silica exposure include tuberculosis, chronic obstructive pulmonary disease, and kidney and autoimmune diseases.

The Alert advocates that employers implement a combination of engineering controls, work practices, protective equipment, product substitution, and worker training to reduce exposure and protect workers. To this end, the Alert recommends a series of specific process and equipment changes, including several short-term solutions susceptible to quick implementation. Monitoring of occupational exposure to silica and medical monitoring of exposed workers is also suggested.

Smaller employers with 250 employees at a given site, and no more than 500 employees nationwide, are invited to take advantage of OSHA’s free On-Site Consultation Program. This program helps small businesses to identify and correct worksite hazards and provides free, confidential advice without the risk of triggering enforcement, penalties, or citations.

Fracking is an increasingly common and growing practice in the oil and gas industry. As a result, the issuance of this Hazard Alert focusing on medical hazards and solutions specific to fracking suggests that OSHA and NIOSH may target the fracking industry in future enforcement efforts, as well as focus on other industries where silica exposure is likely. Employers whose workers face occupational silica exposure should stay ahead of these developments by carefully reviewing the exposure risk, evaluating the feasibility of specific safety measures suggested in the Alert, and implementing measures to protect workers from silica exposure as part of their health and safety practices.