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OSHA Wish List for 2014

By Allen Smith  1/28/2014
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Attorneys who specialize in the Occupational Safety and Health (OSH) Act have some wishes and cautionary words for employers’ Occupational Safety and Health Administration (OSHA) compliance in the new year.

Regulatory Landscape

Some wishes are based on the OSH Act’s not being interpreted too broadly. Eric Conn, an attorney at Epstein, Becker & Green in Washington, D.C., shared his three hopes for the new year—all regulatory:

  • OSHA should drop or amend its proposed changes to the injury and illness record-keeping rule. Late last year, OSHA proposed some major changes to its injury and illness record-keeping regulations. These would transform the current record-keeping framework in which employers’ records of workplace injuries remain private to the employer unless OSHA requests them during a workplace inspection or the employer receives a rare request for the record-keeping data from the agency 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,” Conn said. He believes that the new reporting requirements would result in an extraordinary burden on employers to comply and more OSHA inspections and citations, discourage businesses from recording all recordable injuries, invade injured employees’ privacy, and harm companies’ reputations.
  • OSHA should change the way it implements the severe violator enforcement program (SVEP) to respect constitutional due process. The way OSHA implements the SVEP, organizations are placed in the program before the underlying citations that qualified them for it are decided on. “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,” Conn explained. “Our new year’s wish is that OSHA amend the SVEP 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.”
  • The agency should revisit its unlawful interpretation regarding participation in OSHA inspections by union representatives at nonunion worksites. In 2013, OSHA issued a formal interpretation letter of its regulation governing who may participate in OSHA walkaround inspections. It expressed its belief that employees at a nonunion worksite may authorize a third-party union representative affiliated with a union or community organization to act as the employees’ inspection representative. But the plain language of the standard makes it clear that such involvement is not legal. And letting a union representative in for this purpose would provide the union with access to useful information or relationships to facilitate an organizing campaign.

Guiding Principles

Carla Gunnin, an attorney at Baker Donelson in Atlanta, outlined some principles she hopes employers will follow in the new year, namely:

  • Provide safety training, and get workers involved in safety exercises. “Employers often only do the minimal required training and do not reinforce that safety training every year,” she observed. “Each year it is a good idea to reinforce the safety training to continually remind the employees of how to perform their jobs safely.” And ensure “employees have an opportunity to voice their complaints internally and encourage that they do so,” she added.
  • Keep up with new OSHA requirements. A new proposed rule on OSHA 300 logs “would require proactive reporting of injuries and illnesses to OSHA—something that employers currently are not required to do,” Gunnin said. Also, businesses should review their own OSHA history. “Sometimes employers are unaware of OSHA’s policy on repeat citations and are surprised to find out that the citation that they received in 2009 at their New York plant can be the basis for a 2014 repeat at their Georgia plant,” she noted. “Make sure to review OSHA activity that has occurred at any worksites within a corporation’s legal structure. OSHA can cite an employer for a repeat citation at any other worksite within the federal plan states for a period of five years. It is a very low bar for OSHA to prove the repeat once a violation is found. These can cost the company up to $70,000 for each repeat violation.”
  • OSHA 300 review. Gunnin also reminded companies to review their OSHA 300 logs and post the annual summary (OSHA 300A) on Feb. 1. “Many employers get cited every year for failing to either properly complete column F of the OSHA log, failing to post the annual summary on Feb. 1 or having the wrong person sign the annual summary. These fines can be anywhere from $1,000 up to $7,000.”

Four More Wishes

And Howard Mavity, an attorney at Fisher & Phillips in Atlanta, recommended that employers:

  • Act on what they know. “Nothing happens until one of the top executives champions safety and follows through,” he said. “Managers and supervisors may ignore elaborate written safety plans or written company values statements, but they follow the actions of their big bosses. If the only thing the executive hammers away at during meetings is schedule, costs and customer service, that’s what they’ll focus on.”
  • *Connect the dots. “Unions win the highest percentage of elections where safety is the main issue,” Mavity said. “That’s not surprising. Nothing conveys a lack of concern for employees more than appearing to be unconcerned for their safety.”
  • *Focus on the routine things. From a compliance standpoint, according to Mavity, employers “need to develop processes to catch and correct those ubiquitous items such as a missing ground plug, a blocked fire extinguisher or electrical cabinet, missing punch-outs in an electric cabinet or unlabeled switches or exits.” And he recommended that companies use a simple checklist for routine items.
  • *Treat so-called temporary workers the same as employees facing the same hazards. “Several 2013 worker fatalities where the temporary employee was killed on their first day of work drove OSHA to aggressively begin to focus on the wide variety of temporary employees working in our new economy,” Mavity said. “If your temp employee is killed or hurt and he received less training and protection than full-time employees, you may be looking at OSHA willful citations.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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