Posts tagged OSHA.
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As featured in #WorkforceWednesday: This week, we’re highlighting recent updates across the state and federal employment landscapes, including the New Jersey Supreme Court’s non-disparagement ruling, the U.S. Department of Labor’s (DOL’s) new artificial intelligence (AI) guidelines, and the DOL’s restructuring of Occupational Safety and Health Administration’s (OSHA’s) regional operations.

Blogs
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On April 19, 2023, in Gulden v. Exxon Mobil Corp., a federal district judge in New Jersey concluded that federal courts lack subject matter jurisdiction to enforce preliminary orders to reinstate former employees under the Sarbanes-Oxley Act of 2002 (“SOX”).  In so doing, the district judge declined to enforce OSHA’s preliminary orders requiring ExxonMobil to reinstate two former employees to their jobs for the remainder of the agency’s investigation into the pair’s whistleblower complaint, reasoning that the statutory text only confers federal district courts authority to enforce final orders.  Gulden is a win for employers because it joins the growing chorus of federal district courts that have concluded that the Department of Labor may not force a company to preliminarily reinstate an alleged whistleblower before the Secretary of Labor’s final order. 

Blogs
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Some of the most notable recent mass shootings in the United States have been perpetrated by current or former employees in their workplaces.  For example, on April 10, 2023, an employee of a bank in Louisville, Kentucky, who had been notified that he was going to be terminated, shot and killed five bank employees and wounded many others who were attending a morning staff meeting.  In 2021, a Santa Clara Valley Transportation Authority employee shot and killed nine of his fellow employees in a San Jose, California railyard.  In its publication, “Active Shooter Incidents in the United States in 2022”, the FBI reported that of the 50 active shooter incidents in the United States in 2022, 14 of them, comprising 28 percent of the total, occurred in “commerce” settings. 

Blogs
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The California Office of Administrative Law has approved the California Division of Occupational Health and Safety’s (Cal/OSHA) COVID-19 Prevention Non-Emergency Regulations (Non-Emergency Regulations). As a result, on February 3, 2023, Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) expired, and the Non-Emergency Regulations went into effect.

Although extending many of the ETS requirements, as we previously reported, the Non-Emergency Regulations contain some notable changes. A redline comparing the Non-Emergency Regulations to the ETS is available here. Some important changes include:

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For more than two and a half years, employers across the country have navigated a nuanced web of legal requirements and guidance to safely operate during the global COVID-19 pandemic.  Recent updates to the legal landscape at the federal, state, and local level, however, have left many employers asking: is the COVID-19 pandemic finally over? For now, the answer remains “no.” This post discusses three key reasons why employers should continue to operate with the pandemic in mind.

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As featured in #WorkforceWednesday:  This week, we look at a range of developments shifting the enforcement approach across federal agencies and how employers can comply with these shifts.

Blogs
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On January 26, 2022, the City and County of San Francisco released an updated Health Order No. C19-07y (the “Updated Health Order”), which addresses a number of rules issued in an effort to combat continued spread of COVID-19, including changes in exemptions to the universal indoor mask mandate.  Specifically, effective February 1, 2022, the Updated Health Order renews a previously-suspended masking exemption for vaccinated workplaces, with a few significant changes.

First, under the revised mask exemption, only employees who are “Up to Date” on vaccination (see below for definition) may go unmasked in the workplace, assuming the other conditions for the exemption are met.  Other individuals must wear masks at all times, subject to limited exceptions (e.g., alone, while eating).  Further, consistent with the Cal/OSHA definition of an outbreak, this exemption only applies if there have been no outbreaks (currently defined as three or more COVID-19 cases in an “exposed group” within a 14-day period) in the past 30 days.

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As featured in #WorkforceWednesday:  This week, we look at how state and local COVID-19 requirements and new COVID-19 benefits are shifting employers’ policies once again.

Blogs
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As explained in greater detail by our colleague Stuart M. Gerson, the Supreme Court of the United States handed down two major, and quickly decided, rulings on January 13, 2022. After hearing oral arguments only six days earlier, the Court issued two unsigned decisions per curiam. A 5-4 decision in Biden v. Missouri dissolved a preliminary injunction against enforcement of an interim final rule (“Rule”) promulgated by the Centers for Medicare & Medicaid Services (CMS), requiring recipients of federal Medicare and Medicaid funding to ensure that their employees are vaccinated against COVID-19.

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On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”).  The CMS interim final rule, presently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation, issued a ruling on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.

Blogs
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Important guidance regarding COVID-19 testing in the workplace was recently issued by the Centers for Medicare & Medicaid Services (“CMS”) in the form of Frequently Asked Questions regarding Over the Counter (“OTC”) Home Testing and CLIA Applicability.

CMS regulates clinical laboratory testing pursuant to the federal Clinical Laboratory Improvement Act (“CLIA”). Generally, a laboratory or clinical setting (such as a physician’s office) must obtain CLIA certification to perform laboratory testing. Some OTC tests, however, are approved by the Food and Drug Administration (“FDA”) for home use and the new FAQs address the use of OTC home tests in the workplace.

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As featured in #WorkforceWednesday:  This week, the Occupational Safety and Health Administration’s (OSHA’s) vaccine emergency temporary standard (ETS) is currently in the hands of the Sixth Circuit, while New York employers have several updates to look out for in 2022.

Blogs
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On Friday, November 12, 2021, a panel of the U.S. Court of Appeals for the Fifth Circuit issued a strongly worded decision granting a motion to prevent the Occupational Safety and Health Administration (OSHA) from implementing or enforcing the Emergency Temporary Standard (ETS) that went into effect on November 5, 2021. Among other things, the ETS mandates that employers with 100 or more employees require that their workers be fully vaccinated against COVID-19 or submit to precautions like regular testing and using face coverings. However, the Fifth Circuit ordered OSHA to take no action to implement or enforce the ETS until further court order.

Blogs
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As featured in #WorkforceWednesday: This week, the Biden administration has finally released the COVID-19 vaccine mandate rules for employers with 100 or more employees, and the challenges started right away.

Employers Face December, January Vaccine ETS Deadlines

On November 4, the Occupational Safety and Health Administration (OSHA) released its much-anticipated Emergency Temporary Standard (ETS). The ETS covers COVID-19 vaccine, testing, and related requirements for most employers with at least 100 employees. Attorneys Bob O’Hara and Nancy Popper discuss how ...

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As we previously reported, effective November 5, 2021, the Occupational Safety & Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure that covered employees are fully vaccinated or provide a negative COVID-19 test at least weekly.

On November 6, 2021, just one day after the OSHA ETS became effective, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the regulation in a case captioned BST Holdings, LLC v. OSHA. Inasmuch as the OSHA rule’s first milestones are December 5, when most ...

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As featured in #WorkforceWednesday:  This week, government agencies at both the federal and state level are preparing for the Occupational Safety and Health Administration’s (OSHA’s) vaccine emergency temporary standard (ETS).

Employer Anticipation Builds for OSHA ETS

All eyes are on DC as the wait continues for OSHA’s COVID-19 Vaccination and Testing ETS, for employers with 100 or more employees. Last week, the Office of Information and Regulatory Affairs (OIRA) held more than 100 meetings with stakeholders to aid in its review of OSHA’s proposed ETS. OIRA completed ...

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As featured in #WorkforceWednesdayThis week, we look at new federal guidance recommending all employees wear masks in the workplace and unique vaccination considerations for unionized workplaces.

OSHA Updates COVID-19 Mask, Vaccination Guidance

The Occupational Safety and Health Administration (OSHA) recently updated its COVID-19 guidance, now recommending that all employees wear masks in the workplace, even if they’re vaccinated. Meanwhile, employers with unionized workforces face unique considerations with regard to vaccination polices. Attorneys Bob ...

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President Biden’s $6 trillion 2022 budget proposal focuses on worker protections—including the American Jobs Plan and the American Families Plan. Both of these plans contain labor and numerous employment initiatives. The budget proposes increased funding for the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB” or “Board”).

The 2022 budget calls for $2.1 billion, an increase of $304 million, in DOL’s worker protection agencies. Over the past four years, those agencies ...

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It has been an active week in California with the release of new statewide face covering guidance, the alignment of Los Angeles County and San Francisco with this guidance, and the withdrawal of the revised Cal/OSHA Prevention Emergency Temporary Standards by the California Division of Occupational Safety and Health Standards Board (the “Board”).

Of most importance, covered employers and workplaces must continue to comply with the more restrictive original Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) that have been in place since November 2020, not

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As featured in #WorkforceWednesday:  This week, several COVID-19 vaccine news developments and updates were announced for employers.

Paid Leave Tax Credit for Employers

President Biden recently announced employers that offer full pay to workers for vaccinations and recovery may be entitled to a paid leave tax credit.

EEOC Promises Guidance on COVID-19 Vaccine Incentive Programs

EEOC acting legal counsel Carol Miaskoff said recently that the agency will release guidance on vaccine incentive programs.

OSHA Offers Guidance on Vaccine Reaction Reporting

Guidance from OSHA ...

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As featured in #WorkforceWednesday:  This week, employers continue waiting on OSHA's COVID-19 emergency temporary standard as retaliation claims rise.

Video: YouTubeVimeo.

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As featured in #WorkforceWednesday: This week on our special podcast series, Employers and the New Administration, employers await action from two agencies: the Office of Federal Contract Compliance Programs and the Occupational Safety and Health Administration. Guest attorney Bob O’Hara discusses the regulatory actions employers should anticipate. Attorney David Garland leads the conversation.

Employers and the New Administration is a special podcast series from Employment Law This Week®, with analysis of the Biden administration’s first 100 days ...

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President Biden’s January 21, 2021 Executive Order (EO) on COVID-19 tasked the Occupational Safety and Health Administration (OSHA) to: launch a national enforcement program, review and correct any shortcomings in their prior enforcement strategies and to determine whether any Emergency Temporary Standards (ETS) were necessary and, if so, to issue an ETS by March 15, 2021.  The prior Administration had not issued an ETS, and was severely criticized by the Congress and labor unions.

On March 12, 2021, OSHA fulfilled some of the EO directives by publishing two COVID-19 ...

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As featured in #WorkforceWednesday:  This week, COVID-19 recovery and safety are top of mind as new stimulus funding, an Occupational Safety and Health Administration (“OSHA”) directive, and paid leave requirements are put in place.

Video: YouTubeVimeo.

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As featured in #WorkforceWednesday:  In the past week, regulatory withdrawals, rollbacks, or new proposed rules are impacting everything from COVID-19 vaccine incentives to joint-employer status.

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As featured in #WorkforceWednesday: This week, we look at updated safety and mask guidance and the top workplace regulations the Biden administration has rolled back.

Video: YouTubeVimeo.

Blogs
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On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published revised COVID-19 guidance to help employers identify risks and determine appropriate control measures to protect workers from COVID-19 exposure. The guidance entitled, "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace"  “(the “Guidance”) is not mandatory, but it is likely a precursor to enforcement standards that are also under review by OSHA.

On his first full day in office, President Biden directed OSHA to issue this revised ...

Blogs
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On January 21, 2021, in an effort to provide enforcement of more stringent worker safety standards, President Biden issued an Executive Order (‘EO”) on Protecting Worker Health and Safety. The EO specifically orders the Occupational Safety and Health Administration (“OSHA”) of the Department of Labor to:

  1. issue, within two weeks of the date of the EO, revised guidance to employers on workplace safety during the COVID-19 pandemic;
  2. consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such ...
Blogs
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The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently updated its COVID-19 Frequently Asked Questions (“FAQ”) regarding employers’ reporting obligations during the COVID-19 pandemic.

As previously reported, effective as of May 26, 2020, OSHA has declared COVID-19 a recordable illness for all employers.  Thus, employers are responsible for recording workplace cases of COVID-19 on a OSHA 300 Log if the case:  (1) is confirmed COVID-19, as defined by Centers for Disease Control and Prevention (“CDC”); (2) is ...

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On July 27, 2020, Virginia became the first state in the nation to implement workplace safety and health standards for COVID-19.  The Safety and Health Codes Board adopted § 16VAC25-220, an Emergency Temporary Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (the “Temporary Standard”), which is designed to supplement and enhance existing Virginia Occupational Safety and Health (“VOSH”) laws, rules, and regulations that may apply to the prevention and control of COVID-19 in the workplace.  Virginia imposed these standards because ...

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As featured in #WorkforceWednesday: The latest FAQs from OSHA recommend wearing face masks, among other suggestions, for employees returning to work. Attorney Robert J. O'Hara discusses the significance of OSHA’s decision to issue recommendations, rather than guidance, and how rules on face masks in the office may differ at the state and local levels.

Video: YouTubeVimeoMP4.

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As featured on #WorkforceWednesday: This week, we finally have some guidance from the Occupational Safety and Health Administration (OSHA), and big employment law changes in Virginia go into effect.

Video: YouTubeVimeoMP4Instagram.

Blogs
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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 ...

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As Michigan businesses begin the process of reopening, they must comply with Governor Gretchen Whitmer’s Executive Order 2020-91 (“Order”) regarding “Safeguards to protect Michigan’s workers from COVID-19.”  The Order includes detailed safety standards, with which employers in construction, manufacturing, retail, research labs, offices and restaurants, must comply, for the stated goal of protecting workers and customers from the novel coronavirus.

Whereas the specific safety standards required by the Order differ by industry, all businesses or operations ...

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On April 13, 2020, the Occupational Health and Safety Administration (“OSHA”) of the U.S. Department of Labor (“DOL”) issued an industry-specific alert for the package delivery industry during the COVID-19 pandemic.

The alert provides guidance tailored to the package delivery industry, but it is equally useful for any company using its own employees to deliver goods to customers or clients.

OSHA recommends the following:

  • Encourage workers to stay home if they are sick.
  • Establish flexible work hours (e.g., staggered shifts) where feasible.
  • Practice sensible social ...
Blogs
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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 ...

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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 ...

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A Trending News video featured in #WorkforceWednesday: Last week, government agencies released several different coronavirus guidance documents for employers:

Blogs
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On July 30, 2018, the Occupational Safety and Health Administration (“OSHA”) published a notice of proposed rulemaking aimed at rolling back electronic reporting requirements that were implemented under a rule issued during the Obama administration (“Electronic Reporting Rule”). The Electronic Reporting Rule required employers with 250 or more employees, as well as employers in high risk industries, to electronically submit OSHA Form 300A (annual summary of work-related injuries and illnesses) by the end of 2017, and OSHA Forms 300 (log of injuries and illnesses ...

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Featured on Employment Law This Week: NYC Employers Required to Grant Temporary Schedule Changes .

New York City employers are now required to accommodate some employee schedule changes - As of July 18th, employees in New York City can request temporary schedule changes, or permission to take unpaid time off for personal events like a caregiving emergency. Employers are required to grant up to two changes per year for up to one business day per request. Employees must be on the job for a minimum of 120 days to be eligible. A new poster has also been issued by the City.

Watch this ...

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This week’s top story on Employment Law This Week: The Occupational Safety and Health Administration (“OSHA”) plans to roll back a controversial reporting rule initiated at the end of the Obama administration.

OSHA has proposed rescinding parts of a 2017 rule that requires companies with 250 or more employees to submit detailed reports on workplace injuries. OSHA says this move would protect employee privacy and reduce the burden for employers. Three organizations have filed suit over the proposed changes, saying that the data from the detailed reports helps improve ...

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Our colleagues, , at Epstein Becker Green, has a post on the Health Employment and Labor blog that will be of interest to many of our readers: “Workplace Violence Prevention Plans Now Mandatory for California Hospitals and Skilled Nursing Facilities.”

Following is an excerpt:

With the passage of A.B. 30, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. After years of wrangling with California’s ...

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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “OSHA Withdraws 'Fairfax Memo' – Union Representatives May No Longer Participate in Work Place Safety Walkarounds at Non-Union Facilities.”

Following is an excerpt:

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a ...

Blogs
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United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation ...

Blogs
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A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation ...

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On January 13, 2017, the Occupational Safety and Health Administration (“OSHA”) issued non-binding recommendations to aid employers with creating new or improving existing workplace anti-retaliation programs.  OSHA’s recommendations apply to all public and private employers that are subject to the 22 whistleblower protection statutes that OSHA enforces.[1]

Under the various federal whistleblowing protection statutes, employers are prohibited from retaliating against employees who report or raise concerns about workplace health and safety issues. OSHA ...

Blogs
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On December 19, 2016, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a final rule amending its record keeping regulations, located at 29 C.F.R. Part 1904. The Amendment clarifies that a covered employer has an on-going obligation to create and maintain accurate records of recordable work-place injuries and illnesses. It did so in response to the decision in AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).

The Occupational Safety and Health Act (“Act”) requires covered employers to create and preserve records of ...

Blogs
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Complying with employment law has become increasingly difficult given that various states and municipalities have passed legislation that seemingly contradicts federal guidance.[1] One state law that has been in the spotlight is North Carolina’s House Bill 2, the “Public Facilities Privacy and Security Act” (“HB2”), which was passed in an emergency legislative session on March 23, 2016, to overturn a local ordinance that was set to extend anti-discrimination protections to lesbian, gay, bisexual, and transgender (“LGBT”) individuals and would have allowed ...

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On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) published its long-awaited electronic recordkeeping rule (“final rule”). The final rule creates numerous new recordkeeping obligations and additional administrative burdens for hospitality and other employers. Many employers will now be required to submit injury and illness information to OSHA electronically. OSHA will then attempt to remove identifying information from the records and publish them on a searchable database on its website. The final rule also includes several new ...

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Our colleague Valerie Butera, a Member of the Firm at Epstein Becker Green, has a post on the OSHA Law Update blog that will be of interest to many of our readers in the technology industry: “OSHA’s New Electronic Recordkeeping Rule Creates a Number of New Pitfalls for Employers.”

Following is an excerpt:

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically.  The amendments also include provisions designed to prevent employers from ...

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Our colleague Valerie Butera, a Member of the Firm at Epstein Becker Green, has a post on the OSHA Law Update blog that will be of interest to many of our readers in the financial services industry: “OSHA’s New Electronic Recordkeeping Rule Creates a Number of New Pitfalls for Employers.”

Following is an excerpt:

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically.  The amendments also include provisions designed to prevent employers ...

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Our colleague Valerie Butera, a Member of the Firm at Epstein Becker Green, has a post on the OSHA Law Update blog that will be of interest to many of our readers in the retail industry: “OSHA’s New Electronic Recordkeeping Rule Creates a Number of New Pitfalls for Employers.”

Following is an excerpt:

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically.  The amendments also include provisions designed to prevent employers from ...

Blogs
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Our colleague Valerie Butera, a Member of the Firm at Epstein Becker Green, has a post on the OSHA Law Update blog that will be of interest to many of our readers in the hospitality industry: “OSHA’s New Electronic Recordkeeping Rule Creates a Number of New Pitfalls for Employers.”

Following is an excerpt:

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically.  The amendments also include provisions designed to prevent employers from ...

Blogs
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The Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health issued interim guidance on April 10, 2016, for protecting outdoor workers who may be exposed on the job to mosquitos and healthcare and laboratory workers exposed on the job to body fluids of individuals infected with Zika virus.  Although the guidance is not a standard or regulation, employers should be mindful that OSHA can always issue citations under the General Duty Clause (OSHA’s catch all provision requiring all employers to provide employees with safe ...

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On January 1, 2015, OSHA rolled out its Severe Injury Reporting Program, requiring all employers to report to OSHA within 24 hours any work-related amputations, inpatient hospitalizations, or loss of an eye.  The long standing requirement to report work-related fatalities to OSHA within 8 hours also remains in place.

According to a report issued by OSHA on January 17, 2016 evaluating the impact of the new reporting requirements, before the requirements were established, compliance officers were often dispatched to inspect a fatality in the workplace, only to discover a history of ...

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[caption id="" align="alignright" width="120"] Valerie Butera[/caption]

In a recently updated directive to Regional Administrators and State Plan Designees from Dr. David Michaels, Assistant Secretary of Labor for OSHA, the categories of small businesses exempt from programmed health and safety inspections changed.

This exemption applies to workplaces with 10 or fewer workers who perform work in industries OSHA deems low hazard.  OSHA identifies low hazard industries by studying the most recent results of mandatory surveys sent to employers in countless industries by the ...

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Since OSHA’s revised fatality and severe injury reporting rule went into effect on January 1, 2015 (see related story), employers have been deeply concerned that the agency would use information contained in Rapid Response Investigation Reports (RRIs) -- required by OSHA in response to approximately 50% of the reports made this year -- as the basis for issuing citations and fines.  This concern stems from the fact that when OSHA finds an employer’s RRI unsatisfactory, such as where the employer merely blames the victim or fails to provide what the agency determines is an adequate ...

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OSHA has employed many creative strategies to maximize its enforcement efforts during the Obama administration.  One such tactic involves scrutinizing employers with multiple worksites (retailers are a particularly easy target), sending compliance officers to inspect one of the worksites, issuing citations, and then visiting the employer’s other worksites, identifying the same problems found in the first worksite inspected, and issuing repeat citations to the employer based on the citation issued at the original worksite.  This approach gives OSHA significant bang for ...

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In one of the news stories on Employment Law This Week - Epstein Becker Green's new video program - EBG attorney George Whipple details OSHA’s recently increased focus on the health care and nursing care industries. The agency’s fines have historically been very low, but recently OSHA cited medical patient transportation company LifeFleet for several violations totaling more than $235,000. See below to view the episode or read more about how to stay compliant and avoid heavy fines.

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The Occupational Safety and Health Administration (“OSHA”) recently intensified its scrutiny of the health care and nursing care industries. On June 25, 2015, the agency announced a new enforcement initiative targeting inpatient health care and nursing care facilities. But this increased scrutiny of the health care and nursing care industries does not end there—OSHA is spreading its enforcement reach to other types of health care entities.

Recently, OSHA cited LifeFleet LLC, an Ohio medical patient transportation company, for training shortfalls and bloodborne ...

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Our colleagues Brandon C. Ge, Steven M. Swirsky, Daniel J. Green, Lori A. Medley, and Valerie N. Butera (with Theresa E. Thompson, a Summer Associate) contributed to Epstein Becker Green’s recent issue of Take 5 newsletter. In this edition, we address important employment, labor, and workforce management issues in the technology, media, and telecommunications industry:

  1. BYOD Programs: Privacy and Security Issues and Minimizing the Risk
  2. High Tech and New Media: Organized Labor’s New Frontier
  3. A Growing Role for the FTC in Regulating Workforce Management
  4. Avoiding Age ...
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Although OSHA’s new reporting rule has been in effect for almost seven months now, it has caused some major changes in the way that OSHA operates.  Since the new reporting rule went into effect on January 1, 2015, OSHA has received more than 5,000 reports of work-related deaths, inpatient hospitalizations, amputations, and losses of an eye.  As OSHA anticipated, compliance with the rule has focused the agency’s attention on industries and hazards that it had not focused on before.  For example, because of the unexpectedly high number of reports of amputations from supermarkets ...

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On March 5, 2015, the Occupational Health and Safety Administration (“OSHA”) issued its “Final Rule” establishing the procedures for handling retaliation complaints brought under Section 806 of the Sarbanes-Oxley Act (“SOX”). Section 806, as amended by Dodd-Frank, protects employees of publicly traded companies, as well as employees of contractors, subcontractors, and agents of publicly traded companies, from being retaliated against for reporting fraudulent activity or other violations of SEC rules and regulations. The Final Rule addresses the comments ...

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Our colleague Valerie Butera recently authored Epstein Becker Green’s March issue of Take 5 in which she outlines actionable steps that employers can take to improve safety in the workplace and avoid costly OSHA citations.

Following is an excerpt:

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for ...

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Our colleague Valerie Butera recently authored Epstein Becker Green’s March issue of Take 5 in which she outlines actionable steps that employers can take to improve safety in the workplace and avoid costly OSHA citations.

Following is an excerpt:

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for ...

Blogs
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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 ...

Blogs
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On January 11, 2015, a multi-vehicle pile-up took place in west Michigan involving nearly 200 vehicles, including at least one truck carrying fireworks, and another carrying formic acid.  The formic acid caused a HAZMAT event and the fireworks exploded in the truck that was carrying them.  Many were badly injured in the accident, including two firefighters who responded to the exploding fireworks.  Tragically, the driver of another semi-truck was killed.

Winter weather and hazardous driving conditions were significant causal factors in the pile-up.  Although OSHA does not have ...

Blogs
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Guest post from the OSHA Law Update blog, by our colleague Valerie Butera, at Epstein Becker Green.

Retailers, get ready for OSHA’s revised recordkeeping and reporting rules, effective January 1, 2015.

As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer subject to the rules. The new reporting requirements apply to all retailers, even those included in the ...

Blogs
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On November 21, 2014, the Department of Labor released its Agency Rule List, which provides the status of all rulemaking efforts at each of its agencies.  OSHA dominated the list of regulatory activity in the Department, listing 26 regulations in the prerule, proposed rule, and final rule stages. 

Of these 26 items, OSHA announced that its top regulatory priorities include:

  • Efforts to control exposure to crystalline silica
  • Enhancements to current infectious disease protocols in healthcare and other high risk environments
  • Issuance of a final rule modernizing its reporting system ...
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To register for this webinar, please click here.

Join Valerie Butera, Member of the Firm in the Labor and Employment practice on Wednesday, December 10, 2014 at 1:00 p.m. EST for a 60-minute webinar.

This webinar will delve deeper into OSHA issues that will impact a wider 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.

Topics will include:

  • Where we are now and the direction of ...
Blogs
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By Valerie Butera

OSHA requires employers to provide safe jobs and workplaces for their employees. And generally employers can rely upon established OSHA standards to guide them in reaching that goal. But faced with employers’ numerous questions and concerns regarding Ebola hemorrhagic fever (Ebola) now that several patients with Ebola have been treated in the United States, OSHA has been slow to provide answers.

To date, OSHA has advised employers that certain established standards may apply in the event of possible worker exposure to Ebola. The agency has also issued ...

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On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants ...

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On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants ...

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On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants ...

Blogs
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On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA.  The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.”  As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)) requires employees to file complaints alleging retaliation for protected safety related whistleblower activities within thirty days of the triggering adverse employment action.  The Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate, Labor and Pensions Subcommittee on Employee and Workplace Safety about OSHA’s whistleblower program.  One of the key points of his testimony was that between 300 and 600 Section 11(c) complaints per year (roughly 10%) were filed beyond the 30-day deadline.  Dr. Michaels added that at least 100 of these complaints barely missed the deadline -- by less than a month.

The National Labor Relations Act (NLRA), on the other hand, addresses different types of claims and also provides for a much longer statute of limitations.  Section 7 of the NLRA provide: “Employees shall have the right to. . . engage in concerted activities for the purpose of collective bargaining or other mutual air or protection.”  Section 8 prohibits unfair labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”  The NLRA has a 6-month statute of limitations for claims of unfair labor practices.

Because the NLRA’s statute of limitations is six months longer than the OSH Act’s, OSHA agents will now advise employees who file an untimely Section 11(c) claim that their claims may qualify as unfair labor practices under the NLRA, and explain their rights to file such claims with the NLRB, where their claims could be timely.  For a claim to qualify for protection as an unfair labor practice, however, the claim must involve “concerted activities.”  Thus, not every employee who was unable to file a timely Section 11(c) complaint will have a viable unfair labor practice claim, even if it would be timely under the NLRA.

The NLRB has provided a set of talking points to OSHA to help the OHSA agents discuss these rights with employees:

  • OSHA recommends that you contact the NLRB as soon as possible, to inquire about filing a charge
    alleging unfair labor practices.
  • The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
  • The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren't in a union.
  • OSHA may not determine whether you are covered by the NLRA. Please contact the NLRB to discuss your rights under the NLRA.

OSHA also plans to include this information when it sends letters alerting employees that their 11(c) claims are being closed as untimely.

Neither the NLRB nor OSHA has addressed the legal issues posed by this agreement.  Congress intended that employees must file safety related whistleblower complaints very quickly, which is why it set such a short limitations period.  The short deadline for such claims makes sense because safety and health issues pose special risks; i.e., it is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting such issues could have grave consequences.  Creating a loophole or backdoor to extend the filing deadline for claims that could have been timely pursued as 11(c) claims by treating them as NLRA violations could discourage timely reporting under the OSH Act.

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On June 10, 2014, Epstein Becker Green's national OSHA Practice Group presented a webinar regarding OSHA's Severe Violator Enforcement Program (SVEP). The SVEP is an OSHA enforcement program intended by OSHA to direct its enforcement resources at employers whom OSHA believes are “indifferent to their OSH Act obligations."

The webinar covered:

  • What the SVEP is;
  • How and when employers "qualify" into it;
  • What the consequences are for doing so;
  • Interesting data and trends about the SVEP; and
  • Tips to help employers avoid this fate.

This webinar was the second part in a five-part ...

Blogs
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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:

  1. More Whistleblower Complaints;
  2. Heavier enforcement by OSHA;
  3. Increased enforcement by the Joint Commission; and
  4. 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:

  1. Reviewing and digesting the new OSHA hospital patient and employee safety resource;
  2. Work with employees and/or contractors to improve Safe Patient Handling Programs and/or a Safety and Health Management Systems; and
  3. 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. . . .

Blogs
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By John F. Fullerton

On April 29, 2014, the Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate Education, Labor and Pensions Subcommittee on Employee and Workplace Safety to seek a number of changes to the whistleblower protection provisions of Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) so it would track provisions of other, more recent whistleblower protection laws.  Here is a link to Dr. Michael's testimony.

The provisions at issue are intended to protect employees from retaliation by their employers for ...

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On April 8, 2014, Epstein Becker Green's national OSHA Practice Group presented a webinar regarding OSHA's Temporary Worker Initiative. The briefing addressed enforcement issues and data related to the temporary work relationship, and recommendations and strategies for managing safety and health issues related to the temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the "Employer Mandate" kicks in, which will require employers with 50 or more workers to provide ...

Blogs
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The national OSHA Practice Group at Epstein Becker Green co-authored an article in BioFuels Journal entitled “Railcar Fall Protection: What OSHA Requires from Ethanol Plant Operators.”  Although the article principally addresses OSHA's enforcement landscape related to work on top of railcars at ethanol plants, the analysis carries over to work on top of any rolling stock (e.g., tanker trucks, railcars, rigs, etc.) in any industry.

Here is an excerpt from the article:

Addressing fall hazards is always among the OSHA's top enforcement priorities.  Indeed ...

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Our colleague Eric Conn, Chair of Epstein Becker Green's OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA's Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the "Employer Mandate" kicks in, which will require employers with 50 or more workers to ...

Blogs
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Our colleague Eric Conn, Chair of Epstein Becker Green's OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA's Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the "Employer Mandate" kicks in, which will require employers with 50 or more workers to ...

Blogs
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Our colleague Eric Conn, Chair of Epstein Becker Green's OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA's Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the "Employer Mandate" kicks in, which will require employers with 50 or more workers to ...

Blogs
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By Amanda R. Strainis-Walker

OSHA recently launched a Regional Emphasis Program (REP) that will focus enforcement resources on employers operating in the automotive supply manufacturing industry.  This new Auto Supply Manufacturers enforcement program will target manufacturers in the southeast that supply engines, airbags, trim, or any other automotive products.  The specific geographic areas covered by the inspection program include at least Georgia, Mississippi, and Alabama.

“Hazards associated with the Auto Parts Supplier Industry that are the focus of this REP ...

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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) ruleAll 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:

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.

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Epstein Becker & Green is proud to report that Corporate INTL Magazine has named our national OSHA Practice Group based out of Washington, DC as the "Occupational Health & Safety Law Firm of the Year" in its 2014 Global Awards.

Here is a press release that EBG put out about the award.

The award was given after Corporate INTL's research department conducted extensive reviews, drew insight from business leaders, advisers and investors throughout the world, and took feedback over the past year from the readership of Corporate INTL Magazine (over 70,000 company leaders and advisers ...

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February 1st is an important annual OSHA Injury and Illness Recordkeeping deadline. Specifically, by February 1st every year, certain employers are required by OSHA’s Recordkeeping regulations to:
 1.Review their OSHA 300 Log;
 2.Verify that the entries are complete and accurate;
 3.Correct any deficiencies on the 300 Log;
 4.Use the injury data from the 300 Log to develop an 300A Annual Summary Form; and
 5.Certify the accuracy of the 300 Log and the 300A Summary Form
For a more detailed explanation of the requirements and which companies are exempt, we encourage you to read the ...

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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).

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February 1st is an important annual OSHA Injury and Illness Recordkeeping deadline for all U.S. employers, except for those with only ten or fewer employees or who operate in enumerated low hazard industries such as retail, service, finance, insurance or real estate (see the industries partially exempted from OSHA's Injury & Illness Recordkeeping regulations at Appendix A to Subpart B of Part 1904).  Specifically, by February 1st every year, employers are required

by OSHA’s Recordkeeping regulations to:

  1. Review their OSHA 300 Log;
  2. Verify that the entries are complete and ...
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Last month, we published an article about OSHA’s proposed new Injury and Illness Recordkeeping and Reporting rule that would create a minefield for hundreds of thousands of employers nationwide.  In a January 6, 2014 press release, OSHA announced that it would extend the comment period for this proposed rule by 30 days in response to a request from the National Association of Home Builders (“NAHB”).  NAHB made the request because the rulemaking overlaps with the proposed crystalline silica rulemaking and it needed more time to disseminate the relevant information to its members and coordinate responses.  March 8, 2014 is now the deadline by which all interested parties must submit comments

on the injury and illness recordkeeping and reporting rule, replacing the original deadline of February 8, 2014.  For planning purposes, note that the new comment deadline is on a Saturday (likely because OSHA was looking at a 2013 calendar when setting it).

OSHA’s proposed rule lays out several major changes, including requiring employers to electronically submit to OSHA their injury and illness records, whereas the current rule require employers to maintain these records internally, and to share them only in very limited circumstances.  That is hardly the most troublesome element of the proposed new rule, however.  OSHA also intends now to broadcast the injury and illness information on a public website, for no legitimate safety reason.  Indeed, OSHA has no reason to advertise employers’ injury and illness information other than for public shaming.  Employers, therefore, are rightfully concerned about the rule.

Employers and trade associations have expressed a host of different concerns about the proposal to publicize injury and illness records:

  1. Employers fear that publicized injury and illness records will be mischaracterized, and employers’ public perceptions will be unjustly skewed.  Without context as to how the injuries actually occurred and what safety measures the employer had implemented to prevent workplace injuries, the public could jump to incorrect and harmful conclusions about the employer.
  2. Unions will almost certainly use the out-of-context injury and illness information to mislead employees to facilitate organizing campaigns or to advance their interests in contract negotiations.
  3. The publication of injury data will likely discourage some employers from recording all injuries and illnesses, driving the precise opposite result OSHA was hoping to achieve.
  4. Publication of injury and illness records may also lead to disclosure of employers’ proprietary information as well as private health information of injured employees.
  5. OSHA’s publication of injury and illness records deliberately places fault for all injuries upon the employer, despite the express understanding during the rulemaking for the original Recordkeeping rule that the act of recording workplace injuries should not create any implication of fault.  OSHA has recognized that many injuries and illnesses caused in the workplace are outside employers’ control.  This proposal to publish the injury information, however, implies that all recorded injuries were the fault of the employer, because OSHA’s sole motivation for publishing the information is to hold employers accountable in the eyes of the public.

Employers have also presented concerns about the cost and burden of actually submitting the injury and illness information to OSHA electronically, as set forth in the proposed rule.  The literature included with the proposed rule suggests that OSHA assumes a majority of employers already keep their injury and illness records electronically, so submission to OSHA should be doable without much extra time or expense.  Most employers, however, particularly small businesses, still keep injury records in hard copy.  Therefore, the time and expense to comply with the new rule will be far greater than predicted by OSHA, especially if the employer has 250 or more employees and, therefore, must submit records to OSHA four times every year.

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From all of us in the national OSHA Practice Group at Epstein Becker & Green to all of you, happy holidays and happy New Year.  We wish you a holiday season filled with joy, and a safe and happy 2014.

Thank you all for continuing to take time out of your busy days to read our articles and posts here on the OSHA Law Update blog.  As we celebrated the 2nd Anniversary of the OSHA Law Update blog on December 20th, another great year of bringing you fresh perspectives on important OSHA law topics, we had to stop and thank you for all of your positive feedback, comments, and questions ...

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By John F. Fullerton III

As we reported on Epstein Becker & Green’s Financial Services Employment Law Blog, the Department of Labor - OSHA announced earlier this month that employees protected by the whistleblower provisions in any one of the 22 statutes administered by OSHA, from claims of retaliation under the OSH Act based on workplace safety and health complaints, to financial fraud whistleblower retaliation under the Affordable Care Act or Sarbanes-Oxley, can now file their retaliation complaints with OSHA on-line.  Specifically, in a December 5, 2013 press release, OSHA revealed a new web-based tool available for whistleblowers to submit their complaints to OSHA directly on-line, and introduced the on-line complaint form itself.

In the press release, David Michaels, the Assistant Secretary of Labor for OSHA, explained that “[t]he ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections.  Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA.”

The online form, which is already live, provides employees an additional, and for many a much easier, way to file a retaliation complaint to trigger OSHA’s investigative process.   Previously, employees had to mail a written complaint, visit an OSHA office in-person, or place a telephone call to 1-800-321-OSHA (6742) or to one of OSHA’s Regional or Area offices.  Now that filing a complaint is faster, more efficiency, and linked to the familiarity of the internet, we expect an increase in the likelihood that some employees, who might not otherwise have filed complaints, may now do so.

The online form asks employees to list or select from a set of choices the basic information about their complaints.  The complaints will then be followed-up on by investigators, who will contact the whistleblowers to obtain any more detailed information needed by OSHA to determine how to proceed against the employer.

This new accessibility to OSHA for whistleblowing on-line is similar to the on-line ease with which employees can provide tips regarding wrongdoing or apply for bounties under some of the same statutes, such as tips to the Securities and Exchange Commission or the Commodity Futures Trading Commission under the Dodd-Frank Act.  This on-line whistleblower retaliation form is another step in OSHA’s broader effort to make employee protections and information about those protections more accessible to the public.  For example, OSHA had already set up a webpage to educate employees about the whistleblower protections available to them.

The online complaint tool and other web-based outreach to employees is having precisely the effect that OSHA desired, as the number of whistleblower complaints filed with OSHA has grown each of the last five years (i.e., ever year under the current Administration), from 2,160 in FY 2009, to 2,920 in FY 2013.  OSHA released a comprehensive data set reflecting whistleblower activity over the past decade.  In addition to growth in the total number of complaints filed, the number of complaint determinations made by OSHA also grew substantially in 2013 – by nearly 15% to 3,272 (up from 2,865  in FY 2012).  In 2013, however, case determinations by OSHA were much more likely to be made in favor of the whistleblower than in recent years.  Still, cases that OSHA found to have “merit” continue to be rare  --  only 2.3% (or 76 complaints) in FY 2013 were found to have merit.

Blogs
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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:

  1. the injury or illness results in death or the overnight hospitalization for more than observation of three or more employees;
  2. 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;
  3. 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
  4. 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:

  1. 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.
  2. 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.
  3. 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

  1. 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,
Blogs
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On Tuesday, December 3, 2013, in conjunction with the Grain Journal, Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green, delivered a webinar focused on the OSHA enforcement landscape related to work on top of rolling stock (specifically railcars) at grain elevator facilities.  The webinar, including a Q&A session, was recorded, and the Grain Journal has made the recording available online.  The recording includes an audio broadcast with a video of the accompanying PowerPoint presentation.

Here is a link to the recording of the Railcar Fall Protection ...

Blogs
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The Department of Labor (DOL) announced yesterday that whistleblowers covered by any one of 22 statutes administered by the Occupational Safety and Health Administration – which includes whistleblower retaliation complaints under Section 806 of the Sarbanes-Oxley Act (SOX) -- can now file complaints online.  Section 806 of SOX affords protection to employees who have allegedly suffered an adverse action because they complained, externally or even just to their supervisor, that the company has committed a violation of various fraud statutes (frauds and swindles, wire fraud ...

Blogs
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By Alka N. Ramchandani and Michael D. Thompson

In recent years, Cal-OSHA has taken an aggressive stance against exposing employees to potential heat illness, often citing employers and proposing significant penalties for failing to provide to employees who work in high heat conditions with adequate drinking water, shade, training, and/or cool-down periods.  Furthermore, as noted by the California Supreme Court in Brinker v. Superior Court, monetary remedies for the denial of meal and rest breaks “engendered a wave of wage and hour class action litigation” when added to the California Labor Code more than a decade ago.

The California Legislature has brought these two trends together by  amending California Labor Code Section 226.7 to include penalties for employers’ failing to provide “Cool Down Recovery Periods” (“CDRPs”) to prevent heat exhaustion or stroke.  The requirement to provide CDRPs kicks in January 1, 2014, after which California employers will be required to pay a wage premium for failing to provide CDRPs to employees.  This premium pay is akin to the premium pay already required for violations of California’s meal period and rest break laws.  The amendment is sure to trigger substantial litigation in California, and cross over into Cal/OSHA enforcement as well.

California’s Heat Illness Prevention Statute

California employers have long been aware of California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which obligates employers to provide training and access to shade and adequate drinking water for employees who work outdoors in high heat conditions.  Pursuant to the Heat Illness statute, employers have also been required to maintain one or more shaded areas, with either open-air ventilation, forced ventilation, or forced cooling, and employers are required to allow employee access and encourage employees to access these shaded or cooled areas for cool down periods of no less than five minutes or as employees feel the need to do so.  Historical Cal-OSHA Board decisions and Standard Board committee notes have refused to characterize these cool down periods as work-free breaks; i.e., employers may require employees to continue working during periods when they are in shade or air conditioned locations.

Although heat illness has been an enforcement focus across the country, Cal-OSHA is the only OSHA scheme that has its own Heat Illness specific standard.  While federal OSHA has increased its use of the General Duty Clause to cite heat illness issues, Cal-OSHA has led the way in this enforcement space.

California Labor Code Section 226.7

Pursuant to California Labor Code section 226.7, employers are already required to pay a penalty of one hour of pay for any failure to provide a non-exempt employee with a meal period and an additional hour of pay for any failure to provide a non-exempt employee with a rest break.  This law has produced numerous class action lawsuits throughout California.  Under the recent CDRP amendment, any failure to provide a cool down recovery period will obligate the employer to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a recovery period is not provided.  Employers now face more than just serious citations under Section 3395(d), but also cited or sued by employees (or classes of employees) for failure to provide CDRPs pursuant to California Labor Code Section 226.7.

Pursuant to this statute, California employers have suffered through a barrage of wage and hour single plaintiff and class action lawsuits related to California’s meal and rest break requirements under Section 226.7.  This recent history has shown that compliance with these work-free periods is difficult, and demonstrating compliance is even more so.  More importantly, the potential penalties and civil judgments are extremely high.

The Amended Statute

On October 10, 2013, that changed.  The California Legislature joined Cal-OSHA’s cause and signed a new bill into effect amending California Labor Code Section 226.7 to include penalties for failure to provide CDRPs.  Section 226.7 provides in pertinent part:

If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.

Blogs
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Employment Law360 ran an article last week about the addition of Kathryn M. McMahon, a prominent Washington, D.C. OSHA and environmental attorney, to the national OSHA Practice Group at Epstein Becker & Green, a leading labor & employment and health law firm.  Ms. McMahon focuses her practice in the areas of occupational safety and health (OSHA) law as well as environmental law.   She has extensive experience and expertise in handling complex OSHA rulemakings, and regularly assists clients in accident and fatality investigations, workplace hazard assessments, and a broad range ...

Blogs
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By Lindsay A. Smith

Last month, OSHA unveiled its List of the 10 Most Frequently Cited Standards for fiscal year (“FY”) 2013 (i.e., October 1, 2012 through September 30, 2013).  The announcement came at the 2013 National Safety Council Congress and Expo.

Here is the full list for FY 2013:

  1. 1926.501 – Fall Protection (cited 8,241 times during FY 2013)
  2. 1910.1200 – Hazard Communication (cited 6,156 times during FY 2013)
  3. 1926.451 – Scaffolding (cited 5,423 times during FY 2013)
  4. 1910.134 – Respiratory Protection (cited 3,879 times during FY 2013)
  5. 1910.305 – Electrical ...
Blogs
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On Tuesday, December 3, 2013 at 3 PM (Eastern) / 2 PM (Central), Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green will conduct a free webinar focused on OSHA’s enforcement landscape as it relates to work on top of rolling stock (specifically railcars) at grain elevator facilities.  This is the second in a series of OSHA law related webinars for the grain industry in conjunction with Grain Journal.

Whether it’s prepping cars down track away from the elevator, helping to guide a load out spout into a railcar, or allowing state or federal grain inspectors ...

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