On April 20, 2015, the Acting Director of the Occupational Safety and Health Administration (“OSHA”) Whistleblower Protection Programs issued a memorandum to all Regional Administrators clarifying the standard which should be applied to whistleblower claims at the agency investigatory stage. The guidance was issued because there was some concern that the standards contained in OSHA’s Whistleblower Investigations Manual were “ambiguous.” The clarified standard is that “after evaluating all of the evidence provided by the employer and the claimant, OSHA must believe that a reasonable judge could rule in favor of the complainant.” A few points about the clarification are noteworthy. First, the agency made it clear that “the evidence does not need to establish conclusively that a violation did occur.” Second, “a reasonable cause finding does not necessarily require as much evidence as would be required at trial.” Finally, the memorandum does note that “although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations.” While it is too early to tell whether the newly clarified standard will result in more (or less) reasonable cause determinations, employers need to take the guidance into consideration when they are involved in any future whistleblower investigation.
With that first real chill in the air, the holiday season is suddenly upon us. For parents, it is a time to relive our childhood, watching with our children all of those holiday specials ranging from It's the Great Pumpkin, Charlie Brown to Santa Claus is Comin' to Town. Unfortunately, for members of our misfit profession, “tis the season” is not so much about being jolly, but more about defending lawsuits. And speaking of lawsuits, a daily perusal of employment law blogs and periodicals reveals that there is no shortage of new and innovative ways to sue an employer. The seemingly endless tide of profligate litigation makes me shiver like Linus in the Pumpkin Patch about what would happen if the Department of Labor, the EEOC, or the plaintiff’s bar set its sights on Santa and his manufacturing plant in the North Pole. For this reason, I offer the following guidance to Mr. Kringle d/b/a Santa on how to clean up some glaring employment law violations. (Disclaimer: Our guidance to Mr. Kringle is not intended to be legal advice nor should it be a substitute for him retaining local counsel familiar with the laws in his local jurisdiction. I would also include the obligatory tax advice disclaimer, but I believe Mr. Kringle is tax-exempt.) I will discuss individual lawsuits below. However, my main concern in terms of liability is in the arena of the class action. I say this with all due love and affection, “Mr. Kringle, your workshop is a treasure-trove of wage and hour violations.” The elves work, quite obviously, more than 40 hours a week. They work through meal periods and weekends and holidays. Where is their overtime pay? While efficiently furnished, I don’t see any punch clock for your employees. Can we say liquidated damages and attorneys’ fees? Your workplace is also quite literally an accident waiting to happen. The elves have no protective equipment. There is an Abominable Snowman on the shop floor. Can we all say, “OSHA”? Mr. Kringle, despite your big heart, your workplace is rife with harassment and discrimination. For example, there is Rudolph’s red nose and the universally known harassment and bullying to which he has been subjected (“used to laugh and call him names”). The un-remedied mocking of Rudolph makes for a great holiday gift for the plaintiff’s lawyer who signs up Rudolph and his “slam dunk” suit. (We make no representations as to whether any plaintiffs-side lawyers are on the "Nice List" and worthy of such a gift). I think it is imperative that all of your reindeer immediately receive anti-harassment training. So too with poor Hermey. The Seinfeldesque “Anti-Dentite” environment that you have condoned is ripe for litigation and is otherwise an insult to dentists world-wide. That leads us to our Faragher defenses. Are your EEO policies translated into “Elfish” and properly distributed with a clear record of same? Of additional concern, have you taken care to make sure that the post-toy delivery workplace celebration does not cross the proverbial “line” of appropriateness and result in more than just hangovers at the workshop the next day? Finally, we need a word about the Island of Misfit Toys. Notwithstanding that the public may want all lawyers permanently deposited in this desolate place, it is nonetheless illegal to segregate your workforce on the basis of such protected characteristics as being a cowboy who rides an ostrich. And, who among us wouldn’t want to ride an ostrich? Of course, Mr. Kringle is not the only one staring down the barrel at punitive damages. Yes, I’m talking to you, Mr. Burgermeister Meisterburger. Making toys is plainly a recreational activity under state labor laws and interfering with concerted activity in this regard will get you an unfriendly knock on the door from the NLRB. So, to our clients and blog subscribers, I wish you all a joyous holiday season in front of a warm fire surrounded by friends and family, without any visions of EEOC complaints or Department of Labor audits dancing in your heads.
Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes. While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion. The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner. Only a small fraction of these cases involve millionaire athletes. Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis. When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation. While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace. Question:Do any job protections exist for domestic violence victims?Answer: Yes. In several states, including New York, domestic violence victim status is a protected category, meaning that an employer cannot take adverse job actions against an individual on that basis. While federal law does not expressly provide this same protection, Title VII of the Civil Rights Act (Title VII) makes it unlawful for an employer to treat an employee differently due to sex-based stereotypes, such as the assumption that there will inevitably be “distractions” in the workplace if a female employee is involved in an incident of domestic violence. This is not to say that domestic violence victims are insulated from employment actions taken for legitimate work deficiencies or other non-discriminatory reasons. It does mean, however, that an employer will be expected to prove that a challenged action occurred for a non-discriminatory reason. It is also important to remember that the Americans with Disabilities Act (ADA) and analogous state laws prohibit discrimination on the basis of covered physical or mental impairments. Those same laws also require employers to provide disability-related accommodations, which could include modifying certain job responsibilities or employment policies, unless doing so would cause an undue hardship to the business. Although an incident of domestic violence would not itself implicate these laws, the accompanying physical and emotional harm could constitute a disability resulting in employee coverage. Question:Is an employer required to provide victims of domestic violence time off from work?Answer: The New York Penal Law makes it a misdemeanor offense for an employer to penalize the victim of a crime who, after giving advance notice, takes time off from work to appear in court as a witness, consult with a district attorney, or obtain an order of protection. In addition, the federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to recover or receive treatment for serious health conditions, which could include counseling for any physical or psychological conditions resulting from domestic violence. The ADA and equivalent state laws may also require that some amount of unpaid leave be offered as a form of reasonable accommodation. An employer would also be expected to grant domestic violence victims time off from work pursuant to internal leave policies if leave is normally available to employees experiencing other types of personal matters. Question:Is an employer obligated to ensure a safe workplace for domestic violence victims?Answer: The Occupational Safety and Health Administration considers workplace violence to be an occupational hazard which can be prevented or minimized with appropriate precautions. Included within the agency’s definition of workplace violence is violence by someone who does not work at a given location, but who has a personal relationship with an employee. Under the Occupational Safety and Health Act’s “General Duty Clause,” employers are required to provide a place of employment that is free from recognizable hazards that cause or are likely to cause harm to employees. An employer that has experienced acts of workplace violence – or is on notice of threats, intimidation, or other indicia to show a potential for workplace violence – is required under the general duty clause to implement feasible abatement measures. Question:What if my employee is not the victim, but is the person accused or found guilty of engaging in criminal acts often associated with domestic violence?Answer: New York and many other states make it unlawful for an employer to discipline, discharge, or take other adverse action against an employee who was accused of a crime if the charges have been dropped, dismissed, or otherwise resolved in the employee's favor. At least in New York, that same protection is not afforded to pending charges, but an employer motivated by mere allegations that an employee has perpetrated a crime could nevertheless find itself defending against claims of discrimination on other grounds. This includes a claim that the challenged action was the result of an employer policy or practice which adversely impacts one or more groups protected by Title VII, as addressed in recent enforcement guidance issued by the Equal Employment Opportunity Commission. If the accused employee belongs to a union, additional protections may be afforded under a collective bargaining agreement provision requiring “just cause” prior to disciplinary action. In regards to criminal convictions, several states restrict an employer’s ability to fire an individual because he or she has been convicted of a crime. In New York, an employer considering such action must evaluate eight factors, such as the nature of the offense, the time elapsed, the age of the individual when the offense occurred, and any evidence of rehabilitation. Only after evaluating these factors will an employer be in a sufficient position to determine whether a direct relationship exists between the offense and the job, or whether the person’s employment involves an unreasonable risk to property or safety, either of which would provide a defense to a discrimination claim based on a prior conviction. For either arrests or convictions, an employer should investigate the underlying facts to determine if an individual’s conduct justifies termination or some other employment action. Failure to do so may hurt the employer’s chances of successfully defending against allegations of discrimination, prevailing at arbitration, or avoiding negligent hiring or retention claims. In sum, employers must become familiar with the various legal obligations that arise when an employee is involved in domestic violence, either as the victim or the accused. If the employee is known to be suffering the effects of an abusive relationship, the employer should be prepared to grant leave or make other work-related adjustments to facilitate the employee's physical and emotional recovery or participation in the legal process (including obtaining an order of protection). If the employee is accused or convicted of a violent or threatening act, the employer should determine if the underlying conduct impairs his or her continued employment, recognizing that the law generally disfavors employment actions taken because of an individual’s arrest or conviction record. In either situation, merely ignoring the problem is never a good strategy.
Two months ago, many Americans were unfamiliar with the term “Ebola." It’s amazing how quickly things can change. Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak. Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans. If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus. Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are: fever, fatigue, muscle pain, headache, and sore throat. As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to: nausea, vomiting, diarrhea, a rash, and impaired organ function(s). The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q: What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue. If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:
Americans With Disabilities Act (“ADA”) – e.g., disability-related inquiries, medical examinations, regarding employees as being potentially disabled, etc.;
Occupational Safety & Health Act (“OSHA”) – e.g., adhering to OSHA directives and guidelines regarding cleaning and decontamination, use of personal protective equipment ("PPE"), following blood-borne pathogen standards, complying with hazard communication requirements, other circumstances that may fall within the General Duty Clause, etc.;
Title VII of the Civil Rights Act (“Title VII”) – e.g., ensuring that employment actions and decisions do not result in discrimination, harassment, or retaliation on the basis of race, ethnicity, or national origin;
Family and Medical Leave Act (“FMLA”) – e.g., ensuring proper notification to employees of their FMLA leave rights and proper designation of FMLA leave, where applicable; and
National Labor Relations Act (“NLRA”) – e.g., respect employees’ rights to lawfully discuss and raise safety concerns regarding Ebola in the workplace.
Q: May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA. Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard? The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so. As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present: (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q: To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored. In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus. Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q: May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances. In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others. Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk. The governing standard here is one of reasonableness. For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms. Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q: What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury. Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm. According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States. Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern. Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q: What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed. In other words, don’t panic. Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:
Educate the workforce. Lack of information or misinformation spawns unnecessary hysteria. The more employees know about Ebola and how it is transmitted, the better equipped they will be to approach this outbreak in a pragmatic and reasonable fashion.
Remind employees about proper infection control practices (i.e., regular hand washing, sneezing/coughing etiquette, minimizing handshakes and other similar forms of contact where possible, etc.).
Follow OSHA guidance regarding cleaning and decontaminating work surfaces that may contain or have been exposed to blood or bodily fluids.
Consider whether telecommuting would be an effective infection control strategy for an employee who may need to remain out of the physical workplace due to Ebola-related concerns.
Review and consider whether any business that needs to be conducted abroad (to areas impacted by Ebola or close in proximity thereof) can either be postponed or conducted remotely.
Routinely monitor the workplace to prevent discrimination, harassment, and retaliation against employees as a result of this outbreak.
It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States. However, what is abundantly clear is that this situation is constantly changing. What may seem reasonable today may need to be modified tomorrow. As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.
On September 11, 2014, the U.S. Department of Labor, Occupational Safety and Health Administration ("OSHA"), announced a final rule amending its injury and illness recording and reporting requirements. Although the rule has not yet been published in the Federal Register, it has been submitted for publication. The final rule will be effective on January 1, 2015.
The most notable change in the rule pertains to the reporting requirement for hospitalizations following work-related accidents. Under the current rule in effect until December 31, 2014, an employer must report an “in-patient hospitalization of three or more employees as a result of a work-related incident” within eight hours. Under the proposed rule, an employer must report an “in-patient hospitalization of one or more employees or an employee’s amputation or an employee's loss of an eye, as a result of a work-related incident” within 24 hours. The rule also provides another means (besides calling the OSHA Area Office or the 1-800-321-OSHA hotline) for reporting a fatality or hospitalization: electronic submission through a web portal at www.osha.gov. There is also one important distinction: “in-patient hospitalization” in the revised rule is defined as “formal admission to the in-patient service of a hospital or clinic for care or treatment”; the preamble to the rule makes clear that if the admission is for observation or diagnostic testing only, it is not required to be reported. The requirement to report fatalities within eight hours remains unchanged under the revised rule.
The rule also amends the list of industries that do not need to keep injury and illness records unless otherwise informed by OSHA or the Bureau of Labor Statistics. The revised list can be found in the amendment to the Non-Mandatory Appendix A to Subpart B of Part 1904 in the final rule. Employers with ten or fewer employees still need not keep injury and illness records unless otherwise informed by OSHA or the Bureau of Labor Statistics. All employers, regardless of size or industry, must comply with the 8/24 hour reporting requirements for work-related fatalities, hospitalizations, amputations, or loss of an eye as set forth in the rule.
On July 15, 2014, the Occupational Safety and Health Administration ("OSHA") issued a policy memorandum to its Regional Administrators, explaining in greater detail the agency’s Temporary Worker Initiative ("TWI"). The TWI, which was launched on April 29, 2013, is an initiative intended to prevent work-related injuries and illnesses among temporary workers. Employers who have temporary employees hired through staffing agencies should be aware that OSHA has a particular focus on the health and safety of those temporary employees, and should ensure that those temporary employees are provided with proper protective equipment and training to minimize any potential workplace hazards. Perhaps the most interesting portion of the memorandum is the agency’s explanation that “in general, OSHA will consider the staffing agency and host employer to be ‘joint employers’ of the workers in this situation” and, thus, that both employers will be responsible for protecting the safety and health of the worker. OSHA noted that these “obligations will sometimes overlap” and that -- depending on the circumstances of any violations of the Act -- the agency will “consider issuing citations to either or both of the employers.” Notably, while the memorandum states that a host employer will normally have “primary responsibility for determining the hazards in their workplace and complying with worksite-specific requirements,” it adds that the temporary agency or staffing firm also has a “duty to diligently inquire and determine what, if any, safety and health hazards are present at their client’s workplaces.” The memorandum includes the following example: “If a staffing agency is supplying workers to a host where they will be working in a manufacturing setting using potentially hazardous equipment, the agency should take reasonable steps to identify any hazards present, to ensure that workers will receive the required training, protective equipment, and other safeguards, and then later verify that the protections are in place." The memorandum indicates that additional bulletins and a compliance directive regarding the TWI will be issued.
In August of 2011, a former employee of DISH Network filed a complaint with OSHA that DISH had “blacklisted” him. Specifically, the complainant alleged that DISH had given him a negative job reference, and had refused to do business with the complainant’s subsequent employers. What was the alleged reason for the “blacklisting”? The employee, who worked in the marketing department in New York, had reported possible financial fraud to his superior in 2008, and the employee contended the actions against him by DISH -- a publicly traded company -- amounted to retaliation for his reporting the fraud, in violation of the Sarbanes-Oxley Act. Earlier this month, OSHA completed its investigation, finding merit to the employee’s complaint, and ordering hefty fines of over $250,000 against DISH: $157,024 in back wages, $100,000 in compensatory damages, and attorneys’ fees. DISH has 30 days to file an appeal before an Administrative Law Judge.
We highlight this recent decision because it is not widely known that OSHA is the agency tasked with investigating whistleblower provisions in twenty-two different laws, ranging from the Occupational Safety and Health Act itself, to the Surface Transportation Assistance Act and even the Affordable Care Act. Thus, for example, an employer can be subject to a whistleblower investigation and an order from OSHA if it retaliates against an employee for participating in activities protected by these laws, such as complaining about workplace safety, reporting driving a commercial motor vehicle longer than allowed by law, or receiving a subsidy under the Affordable Care Act. When OSHA completes a whistleblower investigation in which it finds merit or after which it files suit in federal court, it has historically issued a corresponding press release as it did regarding the DISH decision. For an example of a press release announcing a lawsuit, see this link.
A complete list of laws with whistleblower provisions subject to enforcement by OSHA is available here. Employers are well advised to review the list and their policies, and to provide training to their managers and supervisors who make employment decisions, in order to ensure compliance with any applicable whistleblower provisions.
On November 8, 2013, the Occupational Safety and Health Administration ("OSHA") released a proposed rule which would require many employers to submit injury and illness records -- such as the OSHA Forms 300, 300A, and 301 -- electronically. The proposed rule, along with the commentary, can be accessed here. The proposed rule -- which would amend 29 C.F.R. Section 1904.41 -- entails three significant provisions:
Establishments with 250 or more employees would be required to submit the OSHA Forms 300 and 301 electronically on a quarterly basis and the OSHA Form 300A summary electronically on an annual basis.
Establishments with 20 or more employees in several specific industries would be required to submit the OSHA Form 300A summary electronically on an annual basis. The specifically-referenced industries in the proposed rule include the following general NAICS classifications: construction, manufacturing, agriculture, utilities, hospitals, and nursing homes.
Employers would have to submit electronic injury and illness records "upon notification" by the agency.
OSHA's stated reason for the proposal is that the agency presently has limited access to establishment-specific injury and illness records (i.e., the most common way it acquires this information is through inspections). According to the agency, the on-line submission of the information will make it easier for OSHA to identify and address recurring health hazards in the workplace. The proposed rule provides that OSHA will be responsible for creating a secure website for affected employers to submit the required information, including log-in IDs and passwords. While the agency has made it clear that it intends to make information submitted by employers public, the commentary to the rule makes it clear that no employee-specific information would be released (e.g., names, personal identifying information, etc.). Comments to the proposed rule must be received by February 6, 2014.
The Occupational Safety and Health Administration ("OSHA") issued a new policy in April of 2013 focused on protecting temporary workers. In a memorandum that was issued to all OSHA Regional Directors, the agency explained that the policy was needed because there were several 2013 workplace fatalities involving temporary workers who had not received adequate training. Going forward, all OSHA investigators have been instructed that they need to “determine within the scope of their inspections whether any employees are temporary workers and whether any of the identified temporary employees are exposed to a violative condition.”
OSHA’s new policy does not appear to be a dramatic or drastic change in the agency’s direction at this time. Employers who employ temporary workers through staffing agencies have always had -- and will continue to have -- an obligation to ensure that those workers are correctly trained and protected from workplace hazards (e.g., personal protective equipment, lockout/tagout, and HazCom, to name just a few). Similarly, staffing agencies who have absolutely no supervisory role over employees or any control over the workplace at issue would not appear to be subject to citations under OSHA’s multi-employer worksite doctrine. However, OSHA’s initiative seemingly includes a desire to place an affirmative “due diligence” obligation on staffing agencies to know what tasks their employees will be performing after being assigned to an employer and/or what safety hazards they might be exposed to. At this point, OSHA has not explained exactly what such a “due diligence” obligation might include.
If and when the agency provides additional guidance, we will report it on this blog.
The effect of an interpretation letter publicly released by the Occupational Safety and Health Administration ("OSHA") on April 5, 2013 is quite concerning. In that recent interpretation letter, OSHA states that employees at non-union workplaces may designate a union representative to accompany OSHA's Compliance Safety and Health Officer during inspections. This interpretation seems to be inconsistent with the specific language of the regulation governing designation of employer and employee representatives during OSHA inspections, and marks a significant change in the manner in which OSHA has historically applied that regulation.
The regulation addressed in the interpretation letter, 29 C.F.R. Section 1903.8, provides that "[a] representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection." The regulation further provides that "[t]he representative(s) authorized by employees shall be an employee(s) of the employer." (emphasis added). There is one exception to this rule. If, in the judgment of OSHA's Compliance Safety and Health Officer, there is good cause to believe that the presence of a third party who is not an employee of the employer is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace," the Compliance Safety and Health Officer may permit the third party to be present during the inspection.
The examples cited in the regulation of third parties who may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace are industrial hygienists and safety engineers. Under appropriate circumstances, one can understand why a subject matter expert may be permitted to be present during an inspection. However, OSHA's recent interpretation letter goes far beyond the text of the regulation to state that "a person who is affiliated with a union" who is not an employee of the employer (i.e., a union organizer) may serve as the representative of the employees during an inspection even in a non-union workplace.
Based on the plain text of 29 C.F.R. Section 1903.8, a union organizer who is not employed by the employer should not be permitted to participate in an OSHA inspection at a non-union workplace. Thus, it appears that OSHA has gone far afield in its recent interpretation letter. Although the agency will enforce OSHA regulations according to its own interpretations of those regulations, courts have sometimes refused to adopt OSHA's interpretations of its regulations, either because those interpretations are at odds with the plain language of the regulations or because the interpretations are really new regulations that should have been subject to public notice and comment before promulgation. It remains to be seen whether this interpretation will be challenged in court.
In March of last year, the Occupational Safety and Health Administration (OSHA) published a final rule (HazCom 2012) aligning its Hazard Communication Standard (HCS) with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS).
By way of background, OSHA’s HCS requires chemical manufacturers and distributors to assess the hazards of chemicals they produce or import and to subsequently provide product labels and safety data sheets conveying that information to downstream users of the chemicals, such as employers. The HCS also requires employers to make these labels and safety data sheets available to its employees at the workplace.
The inconsistencies between the HCS and the GHS required manufacturers to produce different labels and safety data sheets for the same product when it was marketed in different countries. OSHA’s modifications to the HCS in HazCom 2012 were intended to reduce these inconsistencies. Major changes under HazCom 2012 include: (1) revised criteria for classifying chemical hazards; (2) revised labeling requirements; and (3) a new 16-section format for safety data sheets.
Recognizing the practical difficulties in adapting to these significant changes, HazCom2012 allows a lengthy phase-in compliance period for manufacturers, distributors, and employers. Manufacturers and distributors must be in full compliance by June 1, 2015, except that they may ship materials with old HCS labels until December 1, 2015. Meanwhile, employers have until June 1, 2016 to update all labels and safety data sheets in the workplace. However, employers must provide training to their employees on the updated labels and data sheets by December 1, 2013.
Although conducting training is the only formal requirement for employers until 2016, it is advised that employers take the following steps now to ensure a smooth transition:
Make note of materials stored in your workplace with outdated labels and safety data sheets, and attempt to deplete and turn over these materials in a practical yet timely manner.
Instruct employees (especially those involved in purchasing) to be on the lookout for updated safety data sheets.
Request updated data sheets from manufacturers and distributors or information regarding their plans/timetable for updating their materials.
For more information on HazCom 2012, OSHA has provided a detailed information page addressing the new regulations, available here.
In an extremely important decision for employers, the United States Court of Appeals for the D.C. Circuit held that an employer can only be cited by OSHA for up to six months following the occurrence of an error or omission in its injury and illness record-keeping logs. In so holding, the Court restored the plain text of the Occupational Safety and Health Act (the "Act"), which provides that "no citation may be issued . . . after the expiration of six months following the occurrence of any violation." OSHA regulations require employers to maintain their injury and illness logs for five years from the end of the calendar year that those records cover. Relying on that regulation, OSHA had a longstanding practice of issuing citations up to five years following an alleged record-keeping violation. For the first time, an appeals court held that this practice is contrary to the explicit statute of limitations contained in the Act.
The Court's decision was unanimous, and none of the judges thought very highly of OSHA's arguments to extend the statute of limitations to five years for record-keeping violations. The Court stated that OSHA was "heroically attempt[ing]" to "tie this straightforward issue into a Gordian knot," and was "kick[ing] up" a "cloud of dust . . . in an effort to lead us to [the Secretary of Labor's] interpretation."
While employers may still be cited beyond the six-month statute of limitations if violations are continuing or ongoing, this decision will have a significant impact on OSHA's enforcement of employers' record-keeping obligations. OSHA has 90 days from the date of the decision to file a petition for writ of certiorari to the Supreme Court if it wishes to appeal the Court's decision.
