OSHA Forecast: Developments to Watch in 2016 and Beyond

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OSHA Forecast: Developments to Watch in 2016 and Beyond

January 27, 2016

© 2016 Epstein Becker & Green, P.C. | All Rights Reserved. | ebglaw.com

Presented by

Valerie Butera

Member, Labor and Employment Practice

Washington, D.C. Office

[email protected]

202-861-5325

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Broader Range of Industries Targeted for Enforcement


The Enforcement Weighting System

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OSHA has historically used the number of completed inspections as an important metric in evaluating its effectiveness each year.

In an effort to post high numbers, compliance officers were often deployed to conduct relatively simple inspections. The enforcement weighting system changes all that.


Liberal Use of the General Duty Clause

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Section 5 of the OSH Act provides OSHA with the power of the so-called General Duty Clause.

The General Duty Clause provides that each employer must

“furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”


OSHA’s New Injury and Illness Reporting Requirements Changed Everything

OSHA's updated reporting rule expands the list of severe injuries that employers must report to OSHA.

Since January 1, 2015, ALL employers must now report:

• All work-related fatalities within 8 hours.

• All work-related inpatient hospitalizations, all amputations and all losses of an eye within 24 hours.


Statistics from Year One

Injury Reports:

About 75% of the valid incidents were hospitalizations that did not involve an amputation or eye injury

About 25% were amputations

Less than 1% were eye injuries

OSHA’s Response:

About 55% of reports resulted in rapid response investigations seeking more information

About 38% resulted in an on-site inspection

About 7% resulted in no action

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Most Cited Standards in the Last Fiscal Year

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1. Fall protection in construction

2. Hazard communication

3. Scaffolding in construction

4. Respiratory protection

5. Powered industrial trucks

6.Lockout/tagout

7. Ladders in construction

8. Electrical: wiring

9. Machine guarding

10. Electrical: systems design


Staggering Increase in Fines for OSHA Violations and Enhanced Criminal Enforcement

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OSHA Fines Are On The Rise For The First Time in Twenty-Five Years


OSHA is Far More Likely to Bring Criminal Charges than Ever Before

New DOL and DOJ partnership announced December 17, 2015 aimed at criminalizing workplace safety violations.

Environmental offenses often occur in conjunction with worker safety violations.

This move dramatically increases the possibility of criminal prosecution for worker safety violations that are discovered along with environmental violations.

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Increased Emphasis on Joint Employer Scrutiny

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OSHA’s Temporary Employee Initiative


OSHA Moves Towards Joint Employer Liability

NLRB’s Browning-Ferris Decision

OSHA’s Franchise Memorandum


Whistleblowing and its Impact on your Business


Continued Rise in Whistleblower Complaints

The number of whistleblower cases has been steadily rising each year.

There was a 6 percent increase in whistleblower complaints in the last fiscal year, driven by workplace health and safety complaints.

Employees have become increasingly aware of their whistleblower protection rights and continue to demonstrate comfort and willingness to make reports.

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How OSHA Expects Employers to Prevent Retaliation

OSHA released a draft document titled “Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation.”

The documents advises employers to approach whistleblower protection by:

• Engaging leadership in the development of an anti-retaliation program

• Creating an environment that encourages employees to speak openly with their employers about health and safety issues

• Training

• Monitoring

• Independent auditing to ensure that the anti-retaliation program is working

Comments were accepted from the public through January 16, 2016.

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OSHA Clarifies Which Whistleblower Cases Will Lead to Merit Findings

• Case is initiated by a complaint made to OSHA alleging unlawful retaliation.

• If OSHA’s initial inquiry shows the complainant has alleged the existence of facts and evidence sufficient to make a prima facie showing of retaliation, OSHA then conducts an investigation to determine whether the complaint has merit.

• OSHA will then make the determination whether to make merit findings by determining whether there is a “reasonable cause” to believe that a violation of the relevant whistleblower statute has occurred.

• To assert “reasonable cause,” OSHA must find that a reasonable judge could rule in favor of the complainant; the evidence need not establish conclusively that a violation did occur.

• OSHA’s dismissal findings must state that the Secretary has determined that the complaint lacks merit or it not suitable for litigation and explain why.

How the Whistleblower process works

today:

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Rulemaking Activities


The Race to Push Through OSHA’s Most Desired

Regulations Before the End of the Obama Administration

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Improve Tracking of Workplace Injuries and Illnesses Final Rule Expected in March In the past, the forms have been hard copy documents.

OSHA has announced, however, that in March of this year it will publish a new rule requiring the vast majority of employers that keep OSHA injury and illness logs to provide injury and illness information to OSHA electronically, on a frequent basis. This will enable OSHA to more quickly identify workplaces with high rates of injuries and illnesses and dispatch compliance officers to those locations to conduct inspections.

Disturbingly, the electronically submitted injury and illness data will be “scrubbed of identifiers” and then placed on a publicly accessible database so the public will be able to review employers’ injury and illness data.

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What’s the Big Picture?

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Visit EBG’s OSHA Law Update Blog

www.oshalawupdate.com

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Questions?

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Presented by

Valerie Butera

Member, Labor and Employment Practice

Washington, D.C. Office

[email protected]

202-861-5325

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OSHA Forecast: Developments to Watch in 2016 and Beyond

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