Fifth Circuit Expands OSHA’s Authority To Cite General Contractors

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In 1981, the Fifth Circuit Court of Appeals announced in Melerine v. Avondale Shipyards, Inc., that “OSHA regulations protect only an employer’s own employees.” For thirty-seven years, this decision shielded general contractors in the Fifth Circuit from OSHA citations as to hazards to which their own employees were not exposed. On November 26, 2018, however, the Court overturned this long-standing precedent.

In Acosta v. Hensel Phelps Construction Co., the Fifth Circuit addressed a citation arising from a cave-in hazard at a multi-employer construction worksite. In reliance upon its Multi-Employer Citation Policy, OSHA cited both the general contractor and a subcontractor for the hazards, even though only the subcontractor’s employees were exposed to the hazard.

An Administrative Law Judge (“ALJ”) of the Occupational Safety & Health Review Commission found that the general contractor met the requirements of a “controlling employer” as to the hazard under the Multi-Employer Citation Policy. Citing Melerine, the ALJ nevertheless vacated the citation against the general contractor because only employees of the subcontractor were exposed to the hazard.  The Secretary of Labor appealed.

Citing a “seismic shift” in administrative law since Melerine, a unanimous three-judge panel of the Fifth Circuit reversed. In doing so, the Court expressly held OSHA does have the authority under the Occupational Safety & Health Act (“OSH Act”) “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”

For general contractors in Texas, Louisiana and Mississippi, the impact of the reversal of a doctrine which had been around for thirty-seven years cannot be overstated. Responsibility for the safety of all workers on a multi-employer construction worksite is now a non-delegable duty of a general contractor which is the “controlling employer” on the site. The days are over when such a general contractor could simply look to its subcontractors to safeguard the safety of their own employees.

Furthermore, the risks of an OSHA inspection of a multi-employer worksite just increased for general contractors. These risks do not simply include hazards to which only employees of a subcontractor are exposed. The risks include prior inspections which can now be cited as evidence of willful violations.

If they have not done so already, therefore, general contractors in these states must now look to the Multi-Employer Citation Policy for guidance not only as to their responsibilities under the OSH Act, but also as to the consequences of having an ineffective safety compliance strategy for a multi-employer worksite or an inadequate plan for handling OSHA inspections at such a site.

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Eleventh Circuit Limits Scope Of Unprogrammed Inspection

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On October 9, 2018, the Eleventh Circuit Court of Appeals in U.S. v. Mar-Jac Poultry, Inc., affirmed a district court order quashing a search warrant which sought to expand the scope of an unprogrammed OSHA inspection.

Following an electrical accident at Mar-Jac Poultry, Inc., a Georgia poultry processing plant, OSHA requested to inspect not only those hazards involved in the electrical accident, but also to conduct a comprehensive inspection of the entire facility for additional hazards. Mar-Jac consented to inspection of the electrical accident site and the tools involved, as well as its OSHA 300 Logs, but refused to permit inspection of any additional areas or hazards.

In its application for a judicial warrant for an expanded inspection, OSHA sought to inspect (1) hazards implicated by the OSHA 300 logs, and (2) hazards that the Poultry Regional Emphasis Program (“REP”) identified as being of particular concern within the poultry processing industry. OSHA obtained its requested warrant, but Mar-Jac promptly filed an emergency motion to quash.

The District Court granted the motion to quash as to the hazards identified in the Poultry REP. The Court found OSHA had failed to establish that Mar-Jac was selected for inspection pursuant to the application of neutral criteria. OSHA did not appeal this ruling.

The District Court also granted the motion to quash as to five hazards implicated by the OSHA 300 logs.  OSHA did appeal this ruling to the Eleventh Circuit.

In affirming the District Court ruling, the Eleventh Circuit opined: “The existence of injuries does not necessarily mean that the injuries were caused by OSHA violations, or justify the issuance of an administrative warrant for evidence of OSHA violations.”  Upon analysis, the Court thus ultimately found: “The content of the OSHA 300 logs in this case fails to create reasonable suspicion [of an OSHA violation] either alone or in combination with the other information in the [warrant] application.”

The Eleventh Circuit ruling confirms what this blog has urged in multiple posts.  There are limits to the permissible scope of an unprogrammed OSHA inspection. If OSHA is unwilling to agree to a limited inspection, there are options which can be explored with legal counsel for fighting an expanded inspection.

OSHA Reverses Course On Safety Incentive Programs and Post-Accident Drug Testing

By Robert G. Chadwick, Jr, Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On May 12, 2016, OSHA published a final rule that, among other things, added a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. See 29 C.F.R. § 1904.35(b)(1)(iv)  The agency subsequently published guidance clarifying that certain workplace safety incentive programs and post-accident drug testing programs could deter reporting and therefore violate the new anti-retaliation rule.

On October 11, 2018, OSHA reversed course in its interpretation of the anti-retaliation rule. In a Memorandum to Regional Administrators, the agency clarified that the rule “does not prohibit workplace safety incentive programs or post-incident drug testing.”  Rather, action under a safety incentive program or post-incident drug testing policy would be unlawful only “if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting safety and health.”

The Memorandum provides welcome clarification for employers which use incentive programs to promote workplace safety and health.  The Memorandum advises that an employer can avoid any inadvertent deterrent effects of  incentive program by implementing:

  • “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.”

Employers would do well to heed such advice.

The Memorandum also clarifies that drug testing is permissible “to evaluate the root cause  of a workplace incident that harmed or could have harmed employees.” Still, the Memorandum cautions that “[i]f 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.” Employers would also do well to heed such advice, as well as be mindful that drug testing may be regulated by applicable state or local laws.

IN 2017, OSHA ISSUED MORE THAN 150 CITATIONS IN EXCESS OF $100K

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

According to OSHA’s website, more than 150 citations issued by the agency in 2017 proposed fines in excess of $100,000. More than 30 of these citations proposed fines in excess of $200,000.

An increase in the number of OSHA inspections resulting in six-figure penalties was predicted in a previous article by this author. After all, the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015 specifically authorized increased penalties by many federal agencies, including OSHA.

For employers, there are nevertheless three important takeaways from the enforcement data published by OSHA. First, any questions as to how OSHA would use its new penalty authority are being answered. The agency has regularly embraced and used its new authority.

Second, OSHA’s enforcement philosophy has continued despite the change in administration. Citations and fines remain cornerstones of the agency’s approach to workplace safety. Employers which may have hoped for a more collaborative approach in the new administration saw nothing in 2017 to buttress this hope.

Finally, the financial stakes for employers in OSHA inspections have been raised. One of the purposes of this author’s blog, How to Survive an OSHA Inspection, is to alert employers to the benefits of being prepared for an OSHA inspection and being diligent during an inspection. These benefits can include avoided citations or reduced penalties. The more OSHA penalties rise, the more sense it makes for employers to be prepared for, and be diligent during, OSHA inspections.

WHAT DOES AN EMPLOYER NEED TO KNOW ABOUT AN OSHA CLOSING CONFERENCE?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

At the conclusion of an inspection, OSHA generally conducts a closing conference. The closing conference may be conducted in person at the employer’s worksite or by telephone. Most closing conferences are conducted by telephone.

What is the Purpose of the Closing Conference?

The closing conference provides the OSHA Compliance Safety & Health Officer (“CSHO”) the opportunity to review apparent violations and other pertinent issues, if any, found during the inspection, including input for establishing abatement dates.

Who Can Attend the Closing Conference?

OSHA conducts the closing conference with the employer and employee representatives, if any. As with the opening conference, the employer can be represented by legal counsel at the closing conference.

What Should an Employer Do at the Closing Conference?

An employer should generally do three things at a closing conference. First, the employer should listen carefully to OSHA’s findings. Depending upon the circumstances, it may be worthwhile to inquire as to specific information supporting an alleged violation. The employer can then use this information to formulate a strategy for responding to the anticipated citation. Getting a head start on this strategy avoids the time crunch presented by the short period – 15 working days – to respond to the citation once issued.

Second, the employer should endeavor to determine whether OSHA has all the information requested during the inspection. OSHA citations are often based misunderstandings as to what was or was not provided to OSHA. The closing conference provides the opportunity to avoid citations based upon such misunderstandings.

Finally, the employer should ask about hazards that need to be abated. Prompt abatement of hazards identified by OSHA has two advantages. First, prompt abatement can be cited as a basis for reducing a proposed penalty. Second, getting a head start on abatement avoids the time crunch which can be presented by the short abatement deadlines typically found in citations.

What Should an Employer Not Do at the Closing Conference?

Generally, an employer should avoid arguments with the CSHO as to alleged violations. As with other components of an OSHA inspection, what the employer says during a closing conference can be used against it in issuing citations and proposed penalties.

The authority of a CSHO to modify a finding during the closing conference, moreover, is limited. See Field Operations Manual pp. 3-20-23. More authority to modify citations is vested with the Area Director or Assistant Area Director during the informal settlement conference.

How Long after the Closing Conference Will Citations Be Issued, if at All?

The Occupational Safety & Health Act provides “no citation may be issued … after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). Accordingly, a citation may be issued several days or several months after an OSHA inspection.

HAS OSHA RESUMED STRATEGY OF PUBLICLY SHAMING EMPLOYERS?

By Robert G. Chadwick, Jr., Seltzer Chadwick Soefje & Ladik, PLLC.

On December 1, 2017, OSHA issued a news release on its website announcing that citations had been issued by the agency against Manafort Brothers, Inc. for alleged violations at a construction cite in Portsmouth, N.H. The citations proposed penalties of $329,548 for allegedly exposing employees to mercury and respiratory hazards.  The news release included a statement by OSHA’s Area Director opining: “These hazards were certainly preventable.”

As noted in a previous post on this blog, one of the strategies regularly employed by OSHA under the Obama administration was public shaming of employers which received citations. Upon the inauguration of President Trump on February 20, 2017,  OSHA’s strategy abruptly slowed. During the first five months of the Trump administration, OSHA issued only five press releases announcing citations issued against employers.

Recently, however, press releases such as that issued by OSHA on December 1st have dramatically increased.  In November alone, the agency issued eleven press releases announcing citations; one of these press releases was for a citation proposing fines of only $43,458. This development begs the question: Why the abrupt change from the previous months of this administration?

Unfortunately for employers, one answer to this question may be that OSHA has resumed the strategy of publicly shaming employers which receive citations. If so, this development would be unfortunate because OSHA citations may be later amended, reduced or even dismissed. Regrettably, developments favorable to employers are rarely announced publicly by the agency.  Even worse, the agency will generally not remove a news release regarding a citation even if the citation is later amended, reduced or dismissed.

To be sure, November may simply be an aberration and not indicative of any sea change at OSHA.  Still, employers would be wise to closely monitor OSHA’s website to see if bad press is once again a risk of an OSHA inspection.

WORKPLACE VIOLENCE: AN OSHA UPDATE

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

On October 18, 2017, an employee of a Maryland granite company allegedly killed three co-workers and wounded two others at his place of employment. Police reported that the employee allegedly shot all five co-workers with a .380 caliber handgun.

According to OSHA, “2 million American workers are victims of workplace violence each year.” For Fiscal Year 2015, the Bureau of Labor Statistics reported that workplace violence accounted for 417 homicides; 354 of these homicides were attributed to gun violence. A recent FBI study found that 80% of active shooter situations occurred at work.

OSHA has been addressing workplace violence for years. In the past year, however, the agency has recently undertaken new initiatives to curb workplace violence. On December 6, 2016, OSHA issued a Request for Information to determine whether a new standard is needed to protect healthcare and social assistance workers from workplace violence. On January 19, 2017, the agency published a new Compliance Directive setting forth enforcement procedures and scheduling for occupation exposure to workplace violence. On June 29, 2017, OSHA issued the largest workplace violence citation in history when it issued a $207,690 failure to abate citation and fine against a Massachusetts behavioral health facility.

So, what do employers need to know about OSHA enforcement activities as to workplace violence?

Many Workplace Violence Incidents Must be Reported

All employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported within 8 hours. An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

Fatalities or Injuries From Workplace Violence May Need to be Recorded

Under OSHA regulations, each employer required to keep records of fatalities, injuries and illnesses, must record each fatality, injury or illness that is “work-related.” 29 C.F.R. §1904.4 According to OSHA, an injury is presumed to be work-related if it results from an event occurring in the work environment. A fatality or injury from workplace violence may thus need to be recorded even if the incident itself was not work-related.

OSHA Can Conduct Inspections or Investigations as to Workplace Violence Exposure

The January 19, 2017 compliance directive addresses the procedures for inspections for hazards associated with occupational exposure to workplace violence. The directive provides that these procedures shall include review of the employer’s (1) written plan or other policies and procedures to protect employees from workplace violence; (2) injury and illness records; (3) training records; (4) employee medical records, and (4) other records such as police and security reports. Employee interviews are also contemplated by the directive.

OSHA Can Issue Citations Based Upon Workplace Violence Exposure

There is no OSHA specific standard which addresses workplace violence. However, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” As to an alleged workplace violence hazard, OSHA can prove a violation of the general duty clause by showing (1) the employer failed to keep the workplace free of a hazard of workplace violence to which its employees were exposed, (2) the hazard was recognized by the employer, (3) the hazard was causing, or likely to cause, death or serious physical harm, and (4) there was a feasible and useful method to correct the hazard.

OSHA Does Issue Citations Based Upon Workplace Violence Exposure

During the period from October 30, 2012 through October 20, 2017, over 50 citations were issued by OSHA under the General Duty Clause against employers for workplace violence exposure. One citation was issued against a retail store where a store associate was shot during an armed robbery.

Another citation was issued against a security company whose security guard was fatally shot by a visitor to a federal building. The abatement proposed by the citation was the development and implementation of a workplace violence prevention program.

Yet another citation was issued against a convenience store where a clerk was set on fire during a robbery. This citation also proposed the development and implementation of a workplace violence prevention program, which included annual training of employees.

Takeaways for Employers

To be sure, not all workplaces can be alleged to have presented a risk of workplace violence, even when an incident occurs. Many incidents are simply incapable of being foreseen by an employer. The General Duty Clause, however, entails elements which are capable of broad interpretation. Especially when there is an employee fatality or horrific injury, OSHA may attempt to stretch the General Duty Clause to its limits. When in doubt, therefore, an employer should implement a written workplace violence prevention program which includes employee training.

If an incident of workplace violence occurs, an employer must also be mindful of its reporting and recording obligations. Even where a violation of the General Duty Clause cannot be shown, an employer can still be cited for not meeting its reporting or recording obligations.