OSHA Liability 2019—Merrily We Roll Along
As 2019 gets underway, it is important to look back at what occurred in 2018 and hopefully learn from events and modify responses to scenarios that are likely to arise this year. This article will discuss several of the more salient compliance issues likely to arise in 2019 and provide recommendations
OSHA ENFORCEMENT IN 2018
In 2018, OSHA essentially continued to operate as it had during the Obama Administration since there was no Assistant Secretary of Labor for OSHA appointed by the President and approved by Congress to replace Dr. David Michaels. As a result, the career OSHA bureaucrats continued to operate as they had in the past. For those employers with nationwide operations, it was very common to see in 2018 that the OSHA regulations were being enforced unevenly or inconsistently from one Regional or Area Office to another because there was a lack of central direction from Washington. This inconsistency was further complicated by the fact that OSHA continues to experience significant numbers of retirements of career Baby Boomers at the Area and Regional Office levels, as well as in the Solicitor’s office which prosecutes the citations at trial. This inconsistency is also evident within the State Plan OSHA Programs. An employer can expect to be treated with very different interpretations of the underlying Federal OSHA regulations depending on whether it is cited, for example, in Indiana, Michigan, Minnesota, Nevada, Washington and other states. Often, the State Plan regulations do not recognize Federal interpretations of Federal regulations or case law from the OSHA Review Commission or Federal courts, creating further uncertainty. Employers also need to be aware that State Plan OSHA programs have or are developing their own regulations that may create additional compliance duties.
2018 OSHA EXPERIENCE
The following discusses areas of immediate concern in 2019 based upon 2018 occurrences
OSHA Inspections: Failure to become aware of the rights of OSHA, the employer and employees during onsite inspections. Many employers lack basic understanding of the process, especially OSHA employee interviews which are the source of 60-70% of citations. Since employers are frequently unaware of these rights, they never inform their employees of these rights or prepare their employees for the interviews or consider “debriefing” them after the interviews. Attached to this article is a summary of the process and those rights. Similarly, many employers do not know what documents they are required to maintain and produce for OSHA and they produce documents containing information that is outside OSHA’s authority or the proper scope of the OSHA inspection which results in citations. More serious is the fact that employers many times will produce documents that are “legally privileged” from disclosure because the employer has engaged legal counsel and, as a result, waive important legal privileges for documents, including post-accident investigation that were done under the direction of legal counsel. A summary of those documents to which OSHA may be entitled based on the scope of the underlying inspection is attached. OSHA Log Production: During OSHA inspections, the agency will typically request the OSHA 300 Log, Form 301 and Form 300A. Many employers are unaware that regulations require production of these documents within four hours of the request. If they are not produced within this timeframe, or OSHA specifically confirms that it waives the requirement, the employer will receive a citation with a monetary penalty. In some jurisdictions, OSHA has cited employers with penalties up to $12,000 for not providing the Log documents in a timely fashion. OSHA 300A Submission: On or before March 2, 2019, certain employers are required to submit their 300A injury and illness data electronically to OSHA. The directions for submitting the data are available on OSHA’s website (https://www. osha.gov/injuryreporting/). OSHA Logs are maintained based on individual worksites or “establishments” and not upon the entire employer’s workforce. Only a small fraction of establishments are required to electronically submit their Form 300A data to OSHA. Establishments that meet any of the following criteria DO NOT have to send their information to OSHA. Remember, these criteria apply at the establishment level, not to the employer as a whole.
• The establishment’s peak employment during the previous calendar year was 19 or fewer, regardless of the establishment’s industry.
• The establishment’s industry is on the list, regardless of the size of the establishment. (The list is available on OSHA’s website.)
• The establishment had a peak employment between 20 and 249 employees during the previous calendar year AND the establishment’s industry is not on the list.
POST INCIDENT DRUG TESTING
In 2018, OSHA modified its previous policy which significantly restricted an employer’s rights to conduct post incident drug testing. For years, OSHA’s position on post-incident drug testing confounded employers, and employers faced complicated questions in the stressful hours following workplace safety incidents involving accidents where there had been employee injury. The Standard Interpretation now clarifies that “most instances of workplace drug testing are permissible,” including:
• Random drug testing
• Drug testing unrelated to the reporting of a work-related injury or illness
• Drug testing under a state workers’ compensation law
• Drug testing under other federal law, such as a U.S. Department of Transportation rule
• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries Accordingly, employers may lawfully implement, random drug testing programs, DOT drug testing programs, drug testing programs under a Collective Bargaining Agreement, and post-incident (also “postaccident”) drug-testing programs. Postincident drug testing should be conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident. For example, if a forklift operator collides with a pedestrian and injures the pedestrian, both the operator and pedestrian should be drug tested. OSHA reiterated that employers may not use a post-injury drug testing program, which the Agency would view as retaliatory, to discipline an employee solely because the employee sustained injury. Discipline merely for sustaining a workplace injury may also expose an employer to worker’s compensation retaliation claims. Any discipline should focus on violation of the employer’s policy prohibiting an employee from using drugs or being impaired, as well as the violation of safety policies, and not on the fact that the employee sustained an injury.
EMPLOYER SAFETY INCENTIVE PROGRAMS
The Standard interpretation also reverses course on the 2016 retaliation regulation’s prohibition of safety incentive programs. With limited adjustments, OSHA now permits employers to bring back reporting-based safety programs, which the Standard Interpretation lauds as an “important tool to promote workplace safety and health.” The Standard Interpretation permits a program which offers a prize or bonus at the end of an injury-free month. OSHA’s new position thus permits employers to bring back cash bonuses or the much-criticized monthly pizza party. The Standard Interpretation also permits programs that evaluate managers based on their work unit’s lack of injuries. However, to lawfully implement such a safety program, the employer must implement “adequate precautions” to ensure that employees feel free to report an injury or illness and are not discouraged from reporting. OSHA’s primary concern is discouraging employees from reporting injuries because they do not want to forfeit the prize or other benefit. According to OSHA, a mere statement that employees are encouraged to report and will not face retaliation is insufficient. Employers need to undertake their choice of additional “adequate precautions,” which will undercut any inference of a retaliatory motive, such as:
• An incentive program that rewards employees for identifying unsafe conditions in the workplace
• A training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy
• A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses
• A statement that the employer will investigate the accident and if the investigation reveals that the accident was not due to the employee violating the employer’s safety and health policies, the prize or other benefit will be reinstated The Standard Interpretation thus permits and encourages safety incentive programs that reward employees for identifying unsafe conditions in the workplace. A second precaution, a brief training on reporting illnesses and injuries, would be simple for employers to conduct and add to onboarding orientation for new hires. The “mechanism for accurately evaluating employee’s willingness to report” could be a regularly scheduled, random questionnaire on employee willingness to report injuries and illnesses. Accordingly, if employers adopt these low-burden precautionary measures, they may now bring back or adopt safety programs that are popular and effective at reducing workplace injury rates.
OSHA CITATION PENALTIES
OSHA has announced that it will evaluate its proposed penalty structure on an annual basis. While no employer wants to accept citations that are not factually or legally correct, but sometimes do so for expediency, employers must be aware that every citation that it accepts (including Other-Than-Serious) can be used as a basis for Repeat citations in the subsequent five years if there is another “substantially similar” violation or for a Willful violation. In 2019, OSHA revised its penalty structure with increases in the penalty amounts.
Some of the more frequent hazards encountered in 2018 include: Lockout Tagout (LOTO)/Machine Guarding In most cases, employers are required to have a written LOTO procedure for each piece of equipment where energy sources must be de-energized prior to performing servicing or maintenance. In 2018, many employers were found to be lacking these procedures, they were not current as to the correct procedue or employees were never trained how to use them. Oter employers did not conduct the required annual periodi inspections and maintain the required documentation. Regarding machine guarding, many employrs failed to conduct a job hazard assessment (JHA) to identify whether guarding was necessary or adequate or, worse, failure to enforce keeping guards in place. As a result, there were many fatalities and amputation type injuries.
Powered Industrial Trucks (PITS)
Employers cannot allow employees to operate PITS unless and until they have been trained, authorized and certified with supporting documentation. Employees must also be recertified every three years and retrained after an accident or near miss. Employers were cited for failure to train the PITS operators or to enforce the safe operation of the equipment. In addition, many employers allowed outside contractors or temporary employees to operate the equipment without training. PIT accidents frequently result in serious injury or death.
Personal Protective Equipment (PPE)
Employers are required to conduct a written hazard assessment to identify hazards which require PPE (gloves, eye protection, foot protection, etc.), to certify the assessment and certify that the PPE was provided. In addition, employers must enforce the use of PPE. Many employees sustained serious injury because PPE was never provided, employees were not trained how to use it, or the employer did not enforce its use.
Employers are required to protect employees against the hazard of a fall. OSHA has extensive regulations requiring the use of fall protection (guardrails, safety nets or personal fall protection) when employees perform elevated work. This year saw many tragic accidents where employees fell from roofs, mobile equipment, interior structures, machinery, truck trailers, towers and other elevated equipment.
Hazardous Substances (Employee Right to Know)
Employers must provide Hazard Communication training to employees working with hazardous substances and document such training. There are also requirements for labeling. The failure to provide this training has resulted in employee exposure to hazardous chemicals or other substances that may be in the worksite. Employers are cited for failing to train employees about how to understand the Safety Data Sheet (SDS), where they are located and how to access them. Employers also failed to maintain an inventory of the SDS for all hazardous substances at the worksite.
Another significant liability that many employers are unaware of is the “multiemployer worksite” doctrine. Multi-employer worksites exist where there are several employers at the same worksite. Each employer has OSHA duties not only to its own employees but also to other employer’s employees at the site depending on whether the employer is one of the following:
• employer who creates the hazard for other employees
• employer who exposes the other employee to the hazard
• employer who is responsible to correct the hazard to which the other employees may be exposed
• employer who has control over the worksite or a hazard, typically the owner of the worksite, a general contractor or a subcontractor with a sub subcontractor. Many employers are totally unaware of these liabilities and fail to take appropriate action to protect other employees who may be at the worksite, including independent contractor employees and temporary staffing employees.
GENERAL DUTY CLAUSE—EXPANDING LIABILITY
In addition to its formal regulations, OSHA can site employers for “recognized hazards” likely to cause serious injury or death. To be compliant, an employer must be vigilant to such hazards and develop feasible means to protect its employees. There has been considerable OSHA citation liability for hazards, including:
• Workplace Violence (several states have developed regulations to address this hazard)
• Heat Illness (heat rash, heat cramps, heat exhaustion, heat stroke)
• Electric Arc Flash/Blast (exposure to energized electrical equipment)
• Ergonomic Stressors (repetitive motion, awkward motions, extreme temperature environment) Employers are required to maintain their OSHA 300 Log for such illnesses when recordable. The General Duty Clause also requires employers to investigate each incident and take feasible corrective action
OSHA INFORMAL CONFERENCES
Many employers fail to adequately prepare for the OSHA informal conference after citations are issued. Unfortunately, many let the typical fifteen (15) working day period (State Plan program time periods may vary) to attend a conference or file a written contest or appeal to the citation and it becomes a final court order. In other instances, employers do not adequately prepare for the conference to assert their factual and legal defenses and when they attend, they cannot articulate the defenses and OSHA is not motivated to vacate or amend the citations. Worse yet, many attend and make “admissions” of liability which support the violation. Many employers are unaware that every citation which is accepted creates a five year period going forward during which any subsequent violation during that period which is “substantially similar” can result in a Repeat Citation with significant penalties. In so doing, they accept citations which should have been contested for expediency and have no conception of the potential legal minefield that may be created in the next five years. Hopefully, we all can learn from our own unfortunate experiences or those of others in 2018 to avoid repeating errors which result in accidents or regulatory liability to avoid these liabilities in 2019.