WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA’S NEW ANTI-RETALIATION REGULATIONS!

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

On May 12, 2016, OSHA published a Final Rule amending its recordkeeping regulations to include new anti-retaliation protections for employees who report work-related injuries and illnesses. The new anti-retaliation protections are effective August 10, 2016.

What Does the Final Rule Prohibit of Employers?

The Final Rule makes it unlawful for an employer to “discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

What Does the Final Rule Require of Employers?

The Final Rule requires employers to take the following actions:

  • Establish “a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;”
  • Inform “each employee of [its] procedure for reporting work-related injuries and illnesses;” and
  • Inform “each employee that (1) Employees have the right to report work-related injuries and illnesses; and (2) Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness.”

What Enforcement Options are Available for a Violation of the Final Rule?

The Final Rule seemingly allows for two enforcement options in the event of retaliation.  First, the Final Rule implies that discrimination against an employee for reporting a work-related injury or illness is itself a recordkeeping violation which can form the basis of an OSHA citation and fines.   OSHA inspections are thus an option for enforcement of the new anti-retaliation protections.

Second, the Final Rule interprets Section 11(c) of the OSH Act as already prohibiting retaliation “against an employee for reporting a work-related fatality, injury or illness.” Section 11(c) (1) provides a 30-day window for an employee to file a complaint, (2) is enforced through investigations conducted by OSHA’s Whistleblower Protection Program,  (3) authorizes the Department of Labor to  bring suit against an employer in a U.S. District Court for unlawful retaliation, and (4) authorizes a U.S. District Court “to order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.”

 

EMPLOYER DOS AND DONT’S DURING AN OSHA WALK-AROUND INSPECTION!

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

Much of the evidence to support a citation is gathered by OSHA during a walk-around inspection of the employer’s operations. For this reason, it is imperative that the employer be diligent to protect its rights and interests during this component of an OSHA inspection.

DO Have a Management Representative Accompany OSHA During the Walk-Around Inspection. 

The OSH Act specifically allows a management representative to accompany OSHA on the walk-around inspection. 29 U.S.C. 657(c).  To protect its interests, the employer should exercise this right.

DO Require OSHA Representatives to Obey Safety and Security Rules and Procedures During the Walk-Around Inspection.

If visitors to an employer’s worksite are expected to be familiar with and follow certain safety and security rules and procedures, the OSHA representatives should likewise be expected to  be familiar with and follow the same rules and procedures. Otherwise, OSHA may discern that the employer does not take health and safety seriously, especially if the rules and procedures are also applicable to employees.

Personal Protective Equipment/Badges: Where personal protective equipment or radiation badges are required of visitors and employees, such equipment should be provided to and required of OSHA.

Orientation and Training: OSHA representatives should not be presumed to be familiar with an employer’s safety rules and procedures. The OSHA representatives should be provided the same orientation and training provided other visitors to an employer’s workplace.  Typical rule and procedures which should be reviewed with OSHA include (1) emergencies, such as fires, spills and exposures; (2) evacuation routes and procedures; and (2) quarantine procedures.

Security: If visitors are required to log in or wear visitor badges, the same requirements should be imposed upon OSHA.

Where Applicable, DO Limit the Scope of the Inspection.

Where the permissible scope of the walk-around inspection is limited, the employer should police and monitor the route to make sure the permissible scope is not exceeded by OSHA.  Allowing a broader inspection cannot be undone after the inspection.

DO Limit the Ability of OSHA to Observe Employer Operations Outside the Scope of the Inspection:  To the extent possible, the employer should limit the ability of OSHA representatives to observe any operations outside the scope of the anticipated inspection.  For example, if safe, doors to such operations should remain closed. Even  if an operation is outside the scope of the anticipated inspection, what OSHA is able to view in plain sight can nevertheless be the basis for (1) a citation for an OSH Act violation or (2) an expanded inspection.

DO Deny Any Request for a Detour From Planned Inspection Route:  The employer should deny the OSHA representatives access to areas, if any, outside the scope of the anticipated inspection.  Accommodating a request for a detour even for an innocent reasons, such as a restroom, water or cigarette break, risks (1) a citation for a violation viewed by  an OSHA representative during the detour; or (2) an expansion of the inspection based upon violations viewed during the detour.

DO Fight An Attempted Expansion of the Scope of Inspection: If OSHA wishes to expand the scope of the inspection, based upon information learned during the walk-around inspection, the employer should (1) discuss the request with OSHA in much the same manner as the opening conference; discussions regarding the scope of the inspection should not be made during the walk-around inspection; (2) inquire as to OSHA’s basis for seeking an expanded inspection; and (3) object if the basis is without merit.

DON’T Attempt to Conceal Any Operations From OSHA’s View Which are Within the Permissible Scope of the Walk-Around Inspection.

The employer should not attempt to conceal the view of OSHA representatives from areas within the permissible scope of the inspection.  Due to OSHA inspection training, such an effort will likely fail.  Worse, such  an effort will likely only draw OSHA’s attention to the work area sought to be concealed.

DO Collect Evidence

During the inspection , OSHA will be collecting evidence in the form of photographs, video and audio recordings, samples, tests and measurements. Despite any oral assurances to the contrary, OSHA is not bound to share this evidence with the employer. The management representative who accompanies OSHA on the  walk-around inspection, therefore, should be collecting evidence on behalf of the employer  for use in defending an OSHA citation.

DO Observe Everything From the Same Perspective as the  OSHA Representative: If an OSHA representative takes a photograph or video or audio recording of an employee or work location, the management representative should also take a photograph or recording from the same perspective as the OSHA representative.

DO Simultaneously Collect Same Physical Evidence as Collected by OSHA Representative: To the extent necessary equipment is available, for every sample, test or measurement taken by OSHA, the same sample, test or measurement should be taken by the management representative.

DO Talk With Employees About Hazards Discovered During Inspection: With an eye toward collecting evidence only, the employer should ask employees about hazards discovered during the walk-around inspection.

DO Take Notes.

The management representative should take meticulous notes during the walk-around inspection regarding (1) specific operations observed by OSHA; and (2) questions asked by the OSHA representative(s).  After all, OSHA is taking notes.

DO Immediately Address Detected Hazards

Certain hazards detected during a walk-around inspection can and should be immediately addressed by an employer. Amongst the actions which can be taken by an employer during an inspection include the following:

Employee Discipline:  Employees observed to be engaged in conduct in violation of the employer’s safety rules should be immediately reprimanded.  This action may risk alerting OSHA to the violation, but the employer may risk more by doing nothing in response to a violation which OSHA has already noted.

Fix Hazards: A hazard which is capable of being fixed during the inspections should be immediately abated.

Discontinue Hazardous Work:  Although discontinuing work until a serious hazard is abated may be a drastic measure, the risk of doing nothing may be a citation for a willful violation of the OSH Act.

DON’T Conduct Demonstrations.

There is no obligation on the part of the employer to perform demonstrations of work operations not otherwise being performed at the time of the walk-around inspection. To do so, risks (1) providing OSHA with additional questions to ask; (2) a citation for an unwittingly admitted or demonstrated violation; or (3) a basis for expanding the scope of the inspection.

DO Object to Disruptive Impromptu Interviews of Employees.  

Frequently, OSHA will attempt to conduct private impromptu interviews during the walk-around inspection of employees at their work stations. Such impromptu interviews are not necessarily improper, but they may be improper if they unreasonably disrupt the employer’s operation.  The employer should object to an impromptu interview if it (1) prevents the employee from performing an essential job task; or (2) takes the employee away from his or her job duties for an extended period of time.  Since OSHA has the right to interview the employee, however, the employer should couple its objection with an alternative time to interview the employee.

DON’T Respond to Dangerous Questions to Management Representative.

Often, OSHA will ask questions of the management representative during the walk-around inspection which call for damaging admissions.  The management representative should avoid any response to these questions lest they bind the employer to a potentially damaging admission: (1) How long has this hazard been here? (2) Have there been any close calls due to the hazard? (3) Who knows about his hazard? (4) You know this is an OSH Act violation, right? (4) You know an employee can be seriously injured or die because of this hazard right? (5) Isn’t there an industry standard which prohibits this?

DO Defer Questions  to Management Representative if Interview is Anticipated in Presence of Legal Counsel.

Frequently, OSHA will ask questions of the management representative during the walk-around inspection with legal counsel absent.  If an interview of the management representative is anticipated in the presence of legal counsel, such questions should be deferred until the interview itself.

WHAT DOES AN EMPLOYER NEED TO KNOW ABOUT OSHA’S WALK-AROUND INSPECTION?

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

During an OSHA inspection, the agency will conduct a physical inspection of the employer’s operations to gather relevant evidence.

When Does the Walk-Around Inspection Take Place? 

A walk-around inspection will generally take place after the opening conference and OSHA’s review of the employer’s records.

How Long is the Walk-Around Inspection?

There is no time limit on the walk-around inspection but the inspection should not be so long as to unreasonably disrupt the employer’s operation.

What is the Permissible Scope of the Walk-Around Inspection?

As previously noted in the December 6, 2015 post entitled “What Does an Employer Need to Know About an OSHA Opening Conference?”, the scope of the walk-around inspection is generally determined during the opening conference of an OSHA inspection.  Anything which is in plain sight to OSHA during the walk-around inspection, however, can be the subject of a later citation.

What Determines the Manner and Route of the Walk-Around Inspection? 

As previously noted in the December 6, 2015 post entitled “What Does an Employer Need to Know About an OSHA Opening Conference?”, the manner and route of the walk-around inspection can be discussed between the employer and OSHA during the opening conference.  Otherwise, the Compliance Safety & Health Officer (“CSHO”) will determine the manner and route subject to the following considerations: (1) the availability of the management representative or employee representative who will be accompanying the CSHO, (2) compliance with the employer’s safety and health rules and procedures, and (3) avoidance of unreasonable disruption of the employer’s operations.

Who Can Participate in the Walk-Around Inspection?

One management representative at a time and one employee representative at a time have the right to accompany OSHA during the walk-around inspection; the management representative and employee management can be substituted during the course of the inspection.  OSHA may be represented by more than one government official during the walk-around inspection, but one CSHO will generally lead the inspection.

What Does OSHA Do During the Walk-Around Inspection?

For a substantial part of the walk-around inspection, OSHA will be simply visually observing the health and safety conditions of the workplace and taking notes.  OSHA will also be collecting physical evidence.

Photographs:  Subject to any prior understanding as to the protection of the employer’s trade secrets, OSHA may photograph the employer’s workers and work operations.

Audio and Video Recordings: Subject to any prior understanding as to the protection of the employer’s trade secrets, OSHA may conduct audio and video recordings of the employer’s workers and work  operations.

Samples:  OSHA may collect air, water and chemical samples, and swipe samples from workplace surfaces.

Monitoring:  OSHA may monitor or take instrument readings as to employee exposures to toxic fumes, contaminants, chemicals, gases, dusts, radioactivity, etc.

Measurements:  OSHA may take measurements of lighting and noise levels, as well as any measurements of height or distance which may be relevant to an OSHA standard.

Questions:  OSHA may also question both managerial and non-management employees as to observable work conditions and operations.

Does OSHA Provide Feedback During the Walk-Around Inspection?

OSHA will normally, but not always, advise the employer’s management representative of the existence of workplace hazards which can be immediately or quickly abated.

 

NBC5 INTERVIEWS ROBERT CHADWICK AFTER OSHA CITES FORT WORTH ZOO

On Friday, March 18, 2016, NBC5 in Dallas/Fort Worth aired an investigative report regarding an OSHA Citation issued against the Fort Worth Zoo. The Citation arose from an alleged September 14, 2015 incident involving a zookeeper and elephant.  The investigative report included an interview with Robert G. Chadwick, Jr.

SEE VIDEO

WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA INJURY/ILLNESS RECORD MANDATES

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

At the start of an OSHA inspection, the agency will likely ask to review the employer’s injury and illness records.  Barring an applicable exemption, OSHA regulations require that these records include (1) a log of work-related injuries and illnesses (OSHA Form 300), (2) an incident report for each injury and illness (OSHA Form 301), and (3) an Annual Summary of work-related injuries and illnesses (OSHA Form 300A).  29 C.F.R. 657(c)(2).

Are Any Employers Exempted From these Requirements?

OSHA regulations  provide for two categories of employers which may not be required to create or maintain injury and illness records.

Small Employers: An employer that employs ten or fewer employees during the calendar year need not keep injury and illness records unless informed in writing to do so by OSHA or the Bureau of Labor Statistics (“BLS”). 29 C.F.R. 1904.1

Low Hazard Industries: A business establishment that is classified as a low hazard industry need not keep injury and illness records unless informed to do so by OSHA, the BLS or a state agency operating under the authority of OSHA or the BLS.  The list of industries within this exemption was narrowed by OSHA effective January 1, 2015. The exemption does not apply to an employer which has a business establishment engaged in a non-exempt industry. 29 C.F.R. 1904.2

What Injuries and Illnesses Must be Recorded by a Non-Exempt Employer? 

A non-exempt employer must record all occupational injuries and illnesses which result in the following:

  1. Death;
  2. Loss of consciousness;
  3. Days away from work;
  4. Restricted work activity or job transfer;
  5. Medical treatment beyond first aid;
  6. A needle stick or cut from a sharp object that is contaminated with another person’s blood or other potentially infectious material;
  7. Hearing loss as determined by an audiogram;
  8. Medical removal under the medical surveillance requirements of an OSHA standard (i.e., lead, cadmium, methyl chloride, formaldehyde, benzene, etc.)
  9. Tuberculosis infection as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional after exposure to a known case of active tuberculosis;
  10. Musculoskeletal disorder; and
  11. Cancer, chronic irreversible disease,  fractured or cracked bone, or a punctured ear drum.

29 C.F.R. 1904.7-1904.12.

Where Must Injury and Illness Records be Maintained?

The records must be maintained by a non-exempt employer at each establishment  that is expected to be in operation for one year or longer. 29 C.F.R. 1904.30

Short Term Establishments: Only one  OSHA 300 Log need be maintained for all of an employer’s short-term establishments expected to be in operation for less than one year. 29 C.F.R. 1904.30

Single Location: An establishment is a single location where business is conducted or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theater, farm, ranch, bank, sales office, warehouse, or central administrative office).  Where distinctly separate activities are performed at a single location (such as contract construction activities operated from the same physical location) each activity  shall be treated as a separate establishment. 29 C.F.R. 1904.46

Physically Dispersed Activities: For activities where employees do not work at a single location, such as construction, transportation, communications, electric, gas and sanitary services, the establishment is represented by main or branch offices, terminals, stations, etc., that either supervise such activities or are the base from which the personnel carry out these activities. 29 C.F.R. 1904.46

Traveling Employees: Records for  personnel who do not primarily report or work at a single establishment, and who are generally unsupervised in their daily work, such as traveling salesmen, technicians, engineers, etc., shall be maintained at the location from which they are paid or the base from the personnel operate to carry out their activities.

Maintenance Away From Establishment: An employer may maintain  the log of work-related injuries and illnesses at a central location or by means of data-processing equipment, or both, only under the following circumstances: (1) the employer can transmit information to the central location within seven days of receiving information that a recordable case has occurred; and (2) the employer can send the records from the central location to each establishment within the short time periods required by OSHA regulations for production of the records. 29 C.F.R. 1904.30

Change in Ownership: Where an establishment has changed ownership, the employer shall be responsible for maintaining records only for that period of time during which it owned the establishment. However, in the cases of any change in ownership, the employer shall preserve those records, if any, of the prior ownership which are required to be maintained. 29 C.F.R. 1904.34

How and When Must Entries Be Made on the OSHA Form 300?

For every recordable  work-related illness or injury at a non-exempt employer, an entry must be made on the OSHA Form 300 in the detail described in the instruction accompanying the Form.  An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 300.  An employer must record the injury or illness as early as practicable, but no later than seven days after learning  of the injury or illness.

How and When Must the OSHA Form 301 be Completed?

For every recordable work-related illness or injury at a non-exempt employer, the OSHA Form 301 must be completed in the detail described in the instruction accompanying the Form. An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 301.  An employer must record each injury or illness as early as practicable, but no later than seven days after learning  of the injury or illness.

Duty to Investigate:  Although no duty to investigate a work-related injury or illness is set forth in OSHA regulations, such an investigation is necessary to complete OSHA Form 301. An employer must answer specific questions which include the following:

  1.  What was the employee doing just before the incident occurred?
  2. What happened?
  3. What was the injury or illness?
  4. What object or substance directly harmed the employee?

How and When Must the OSHA Form 300A be Completed?

For each calendar year, a non-exempt employer  must complete, certify and post at each establishment the OSHA Form 300A. The OSHA Form 300A must be completed in the detail described in the instruction accompanying the Form.  An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 300A.

Time for Posting: For a completed calendar year, OSHA Form 300A must be posted from February 1 through April 30 of the following calendar year. The OSHA Form 300A must be posted in the same location as other notices required by the OSH Act to be posted at each establishment of the employer. For employees who do not primarily report or work at a single establishment, or who do not report to any fixed establishment on a regular basis, employers must satisfy the posting requirement by presenting or mailing a copy of the OSHA  Form 300A during the month of February of the following year to each such employee who receives pay during the month.

Certification: The certification of OSHA Form 300A must certify that the annual summary of injuries and illnesses set forth therein is true and correct.

How Long Must Injury and Illness Records Be Maintained?

Each completed OSHA Form 300, 301 and 300A must be retained for a minimum of five years. 29 C.F.R. 1904.33

Who Can Review an Employer’s Injury and Illness Records?

A non-exempt employer must provide access to its OSHA Forms 300, 301 and 300A to OSHA upon request within four hours. 29 C.F.R. 1904.40.  The employer must also provide access to such forms to any employee, former employee or employee representative upon request by the end of the following business day. 29 C.F.R. 1904.35