United States: Dealing With OSHA's New Enforcement Landscape

The Occupational Safety and Health Administration has revved up rulemaking and workplace inspection initiatives, changing the enforcement landscape more during the past two years than we saw in the preceding 30. Employers, general counsels and human resource departments should steel themselves for new complexity in dealing with OSHA and Occupational Safety and Health Act compliance. Those who do not comply may not only face significant frustration, but also considerable economic liability.

OSHA is enforcing the nation's workplace safety laws through a variety of new approaches. These include expanding the scope of remedies sought to uninspected premises (in geographically dispersed operations); seeking information that is unrelated to employee complaints that brought OSHA to the worksite in the first place; substantially increasing maximum penalties; and significantly increasing employer responsibilities for injury and illness recordkeeping and reporting.

Taking an Aggressive Approach

The recent decision in Secretary of Labor v. Central Transport LLC stunned the business community with the breadth of remedial action sought by OSHA. What began as a safety inspection at the one of the company's facilities, ultimately led to OSHA seeking abatement of industrial truck hazards at 170 additional locations — worksites that OSHA had not even inspected. This case serves to highlight how a location and circumstance-specific allegation of a safety violation may morph into a systemic compliance scenario. Further, if a geographically dispersed employer does not agree to settle with OSHA, the matter may become a protracted and expensive litigation nightmare.

Likewise, expanded OSHA investigations are taking place every day. Consider, for example, an employee who works outside and complains to OSHA about being subjected to injurious heat stress. When an OSHA inspector comes to the facility to make inquiry, the employer may reasonably agree to an inspection so long as it is limited to workplace conditions associated with the heat stress complaint. But what does the employer do if OSHA asks them to provide comprehensive documentation (likely covering multiple years) concerning programs about electrical lockout/tagout, machine guarding, fall protection, occupational noise, employee training, and process safety management where hazardous chemicals may be present at the worksite? Are these requests relevant? Are they legal? Must the employer comply with demands for information that are unrelated to the underlying heat stress complaint? The answer to these questions lies in a delicate balancing act that weighs legal rights against practical realities.

This issue was first addressed in the U.S. Supreme Court's 1978 ruling in Marshall v. Barlow's Inc. There, the high court found that government inspections of a business were subject to the Fourth Amendment's prohibition against unreasonable searches and seizures. Later, a number of federal appeals courts ruled that complaint-based inspections by OSHA had to be reasonably proportionate in scope to the hazards cited in complaints. In other words, a complaint about a specific work condition was not authorization for a "wall-to-wall" safety inspection, or unbounded requests for documents. The Eleventh Circuit's 1982 decision in Donovan v. Sarasota Concrete Co. built on the same logic, holding that when it comes to investigation of employee complaints, OSHA inspections are limited to the reasonable scope of issues implicated in the complaint. Then 12 years later, the Sixth Circuit ruled similarly in Trinity Construction v. Secretary of Labor, stating that, "Given the increased danger of abuse of discretion and intrusiveness presented by such searches, we agree with those circuits that have explicitly recognized that a complaint inspection must bear an appropriate relationship to the violation alleged in the complaint."

Though employers may feel comforted by the commonsense boundaries these rulings seem to embody, in recent times, OSHA has frequently pursued investigation beyond issues implicated by employee complaints. Indeed, in an Oct. 28, 2015, guidance memorandum for inspection of poultry processing facilities, OSHA specifically authorized investigative personnel to inspect for broad-based safety compliance regardless of the reason for visiting the worksite.

While that 2015 policy directive was limited to poultry processing facilities, there is little doubt OSHA is applying the same rationale in other complaint-originated investigations. The legality of any expanded OSHA investigation may be debatable, but when an OSHA inspector appears at an employer's facility and makes broad-based informational demands, a practical decision must be made as to whether OSHA will or will not be challenged for this practice. This may involve a high stakes risk versus reward analysis that can differ in each unique situation. The point is that the employer must make this decision with full knowledge of the consequences associated with selection of a particular response option. Is a potentially expensive dispute with OSHA worth the effort to narrow the scope of an investigation? Here, the involvement of an attorney well versed in OSH Act compliance and dealing with OSHA enforcement personnel often will be critical.

Monetary Penalties to Increase

OSHA is set to increase maximum penalties for health and safety violations for the first time since 1990. The new penalty structure will be announced by July 1, 2016, with implementation set for Aug. 1, 2016. Under this new structure, OSHA is to consider "catch-up adjustments" to maximum penalty amounts in order to account for inflation, with future increases that similarly will be inflation-driven.

If the maximum catch-up is implemented, the current penalty for repeat and willful violations will increase from $70,000 to $125,438. The maximum penalty for serious and failure-to-abate violations will increase from $7,000 to $12,744.

However, OSHA also will have the option of assessing smaller penalties if it concludes that assessment of maximums: (1) would have a "negative economic impact" or the "social costs" of increase would outweigh the benefits, and (2) the Office of Management and Budget agrees with OSHA's determination to assess a reduced penalty. No one can predict how the "small penalties" option will ultimately play out.

Recordkeeping Requirements

OSHA's recordkeeping and reporting requirements have changed significantly. Very recently, the agency finalized its new electronic reporting rule. While we got a hint of what was coming last year when OSHA announced its plan to require that companies post fatality and injury reports online, the business community was caught off guard by other details when the new rule became final in May.

According to OSHA, data accumulated through the new electronic reporting system will provide public health analysts with tools to conduct advanced research into injury and illness causation and prevention. OSHA also says the new reporting system will assist in identifying workplace safety hazards, fixing problems, and preventing additional injuries and illnesses.

While the new reporting rules purport to guarantee the agency will remove personal identifiers before accumulated data is made public on its website, that assurance does not necessarily comfort all employers. Many believe the new data accumulation and distribution protocol may result in public revelation of confidential business information, which may end up in unintended hands to the unreasonable and unwarranted detriment of the submitting employer.

The new reporting rule also strengthens the whistleblower protections of OSH Act Section 11c, which prevents retaliation against those who report injury and illnesses. The final rule contains three key anti-retaliation provisions: (1) employers must inform employees about their right to report work-related injury and illness; (2) reporting procedures must be reasonable and not deter or discourage employees from reporting; and (3) employers must not retaliate against employees who report work-related injury or illness.

Under this regimen, employers may be cited for retaliation under the recordkeeping standard and, at the same time, employees can file Section 11c retaliation complaints. This may greatly increase the probability of retaliation-based disputes against employers who administer discipline to employees who may violate safety rules.

The electronic reporting rule arrived on the heels of OSHA's final rule on Occupational Injury and Illness Recording and Reporting Requirements, which took effect Jan. 1, 2015. The January 2015 revisions expanded the list of reportable injuries. By way of example, the amputation reporting obligation is triggered when an employee suffers the loss of a small portion of a fingertip, even without bone involvement. In addition, the new rule has shortened reporting times for certain injuries, and it redefines the universe of employers now classified as low-risk.

The "new" OSHA is more aggressive and motivated than ever. The agency seems eager to increase enforcement visibility through policy-making and expanded interpretation of its compliance authority. Now is the time for employers to revisit critical facets of workplace safety and OSH Act compliance. For those who do not, it is likely that frustrating and potentially expensive encounters with OSHA will loom on the horizon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions