A. Enforcement
1. Traditional Enforcement Activity
OSHA's efforts to reinvent itself have been designed to achieve more effective enforcement through incentives for employers voluntarily to comply. As it has done so, the agency has come under criticism from organized labor for neglecting traditional enforcement. At first blush, the numbers may appear to support this criticism, as the number of inspections has dropped dramatically over the past decade.
OSHA Inspection Data, 1988-1998
Year # of Inspections Penalties Contest Rate Total Violations Willful Serious 1998 34,403 $107,987,498 9.4% 98,256 925 69,164 1997 34,264 89,447,893 8.7% 83,710 843 53,995 1996 24,024 66,833,691 10.6% 55,093 1,324 32,269 1995 29,113 87,175,644 9.4% 90,555 1,785 54,295 1994 42,377 119,858,261 11.1% 145,859 989 91,749 1993 39,536 96,601,634 11.3% 139,246 928 85,666 1992 42,431 116,099,760 11.8% 147,158 783 89,807 1991 42,113 91,676,337 10.4% 153,151 2,595 95,194 1990 45,511 66,577,477 9.4% 172,663 4,567 99,929 1989 54,557 57,527,588 8.1% 184,620 2,436 85,175 1988 58,354 45,004,519 6.8% 154,884 1,269 54,277 These numbers may be misleading. The numbers do not account for state OSHA inspections, which continue to occur at a robust pace in the nearly half of the states with state occupational safety and health agencies. Moreover, although the number of federal OSHA inspections has declined by nearly 50% over the past decade, the average fine levied per inspection has increased 400% over the same time period. Also, the number of "significant" cases - cases involving more than $100,000 in initial penalties - continues to increase as OSHA looks to higher and higher penalties as a deterrent. Accordingly, employers should be prepared for higher penalties than in the past for violations discovered during inspections.
As discussed below, OSHA is pursuing new initiatives to enforce occupational safety and health standards in addition to its resuscitation of traditional enforcement activities.
2. Cooperative Compliance Programs
The fate of the reinvention enforcement initiative known as the Cooperative Compliance Program ("CCP") is uncertain. The CCP program was designed to identify high-hazard work places and offer employers the choice of entering into a "partnership" with OSHA or facing comprehensive enforcement inspections. Not surprisingly, many employers complained about the "choice" given to them to participate in the program, labeling it "extortion." The program was challenged in federal court in early 1998 and was stayed by the court. On December 3, 1998, the U.S. Court of Appeals for the D.C. Circuit heard oral argument on the legality of the CCP program. Although the court has yet to render its decision, it appears that the court may strike down the CCP program.
OSHA has implemented an interim program, however, which survived legal challenge and which it is pursuing.
B. Proposed New Rules
1. Proposed Recordkeeping Standard.
In 1997, OSHA proposed revisions to the recordkeeping employers must perform and maintain at the work site. OSHA continues to advance this proposed rule.
(a) Changes in Employers Which Must Comply with the Standard
The current recordkeeping rule has a variety of industry specific exceptions. The proposal would eliminate exceptions to the recordkeeping requirement for a variety of industries including:
- Auto and Home Supply Stores
- Home Furniture and Furnishing Stores
- Eating Places
- Land Developers
- Personnel Supply Services
- Residential Care Facilities The rule will also partially exempt certain industries that are currently required to comply, such as hardware stores, parking garages, bowling centers, and doctors' offices.
In addition to eliminating the exceptions for several industries, the rule significantly expands the reporting and recordkeeping required of a "site controlling employer," usually the general contractor, in the construction industry on projects with an initial total contract value of $1 million or more. The general contractor or other site controlling employer would effectively be required to perform recordkeeping on all subcontractor activity at the site.
(b) Changes in Calculating Days Missed Due to an Injury
Currently the system OSHA uses for counting days missed due to an occupational injury requires an employer to count only the days an employee would have worked. The proposed change would require an employer to tabulate this in terms of calendar days without regard to whether the employee was scheduled to work. Thus, an employee who is injured on a Friday and was able to return to work on Tuesday would be reported to have missed three days instead of one day, as would be reported under the current system. OSHA has proposed that any employer's obligation to count missed time cease after the employee has missed 180 days, but has solicited comment on whether this period should be longer or shorter.
(c) What Injuries Must Be Recorded?
Employer are presently required to record all work-related injuries and illnesses. However, the current regulations do not define what constitutes a work-related injury or illness. OSHA, with very limited exceptions, has presumed injuries and illnesses occurring at the workplace are work related. If the injury or illness occurs away from the workplace, OSHA presumes it is work related if the employee has engaged in a work activity or was there as part of his or her job. The proposal preserves this concept, and defines a work related injury or illness as a condition which the work environment either caused, contributed to, or aggravated. However, there are several exceptions for what constitutes a work related injury:
- Injuries which occur in the employee parking lot or on the access road to the establishment
- Injuries arising solely from voluntary participation in a wellness program, fitness activities, recreational activities, or medical programs
- Cases that are solely the result of employees performing personal tasks (totally unrelated to their job) at the establishment outside of normal working hours
- Cases resulting solely from acts of violence committed by family members, a former spouse or self-inflicted OSHA is reconsidering whether it should exclude from the definition of work related injury those injuries which occur "solely from normal body movements, including walking unencumbered, talking, tying a shoe, sneezing, or coughing." Mental illnesses associated with "post traumatic stress" would be considered work related injuries.
A new definition for recordable injuries and illnesses has also been proposed. OSHA has attempted to separate all injuries into those requiring first aid, which do not need to be recorded, and those requiring medical treatment, which must be recorded. In order to accomplish this OSHA has explicitly listed 13 treatments which it will consider first aid, including the use of wound coverings such as bandages and gauze pads, and removal of splinters and foreign objects from areas other than the eye by irrigation, tweezers, or other simple means. A treatment remains first aid even if performed by a physician. Medical treatment will include anything not explicitly listed as first aid.
The proposal also eliminates the distinction between the criteria for deciding whether to record injuries and illnesses. An injury or illness must be recorded if it (1) is work-related and (2) involves medical treatment; death, inpatient hospitalization, or loss of consciousness; days away from work, of restricted activity, or job transfer; or is a condition specifically identified in Appendix B to the standard, including:
- Bone fractures;
- Lacerations requiring sutures, staples or adhesive closures;
- Burns requiring medical treatment;
- Tuberculosis;
- Musculo-skeletal disorder (including carpal tunnel syndrome); and
- Bloodborne pathogen diseases.
2. Ergonomics
On February 19, 1999, OSHA published a draft version of an ergonomics regulation, with a notice of proposed rule making expected in September 1998. The draft standard would not apply to the construction, maritime or agricultural industries, but would apply to all manufacturing operations, manual handling operations which involve routine and substantial manual handling, and operations which have a work related musculoskeletal disorder (WMSD) reported or identified after the effective date of the regulation.
The regulation requires implementation of an "ergonomics program" to control WMSDs. Initially, the proposed rule requires manufacturing and manual handing operations to establish management leadership and employee participation, including employee involvement in identification, evaluation, and implementation of ergonomic controls, portions of an ergonomics program within one year of the rule's effective date. If a WMSD is reported or if a known WMSD hazard exists, in addition management leadership and employee participation, elements must also be added for (1) hazard identification and awareness; (2) job hazard analysis and hazard control; (3) employee training; (4) medical management; and (5) program evaluation.
Covered employers under the rule will be required to provide information about WMSD's and WMSD hazards to all employees in manufacturing operations, manual handling operations, and jobs with WMSD's. Employers must analyze "problem jobs" and implement feasible measures to eliminate or control WMSD hazards. In addition, employees must be trained regarding the ergonomics program and WMSD hazards periodically, and at least every three years.
A controversial portion of the regulation relates to medical management. The proposed rule requires employers to make prompt and effective medical management available to employees at no cost to them. If any work restrictions are recommended, the proposed rule would require the employer to maintain the employee's total normal earnings, seniority, rights and benefits until: (1) the employee is recovered and able to return to work; (2) effective measures are implemented that do not pose a risk of harm to the employee even during the recovery period; (3) there is a medical determination that the employee is unable to return to the job permanently; or (4) six months have passed.
Finally, the draft regulation contains provisions requiring employers periodically to evaluate their ergonomics program and for retaining records.
3. Requirement to Pay for Personnel Protective Gear
OSHA standards typically require that personal protective equipment (PPE) be provided and used when necessary to protect employees from hazards that may result in injury or illness to employees. The issue of who is required to pay for such equipment, however, has remained unclear. The Occupational Safety and Health Review Commission vacated a citation against an employer who failed to pay for OSHA-required PPE, refusing to accept OSHA's interpretation that the obligation pay for PPE was implicitly that of the employer.
As a result, on March 31, OSHA published a personal protective equipment rule to clarify that employers would be required to provide all OSHA-required personal protective equipment to employees at no cost to them. The proposal would except safety toe protective foot wear or prescription safety eye wear if: 1) the employer permits such foot wear or eye wear to be worn off the job-site; 2) the foot wear or eye wear is not used in a manner that renders it unsafe for use off the job site; and 3) the foot wear or eye wear is not designed for special use on the job.
4. Written Safety and Health Program Rule
Another controversial item on OSHA's 1999 agenda is OSHA's plan to implement a rule requiring employers to develop a written safety and health program. OSHA has released a draft rule applicable to employers in general industry. (A draft rule applicable to construction employers similar to the rule for general industry should be released in the coming months). The rule is considered by OSHA to be "one of the most important regulatory initiatives ever undertaken by" it will likely be the blueprint for a plan geared toward construction employers.
The draft proposal for the safety and health program rule circulated by OSHA would require employers to develop written safety and health programs for their worksites. Consistent with earlier OSHA guidance in this area, OSHA asserts that an effective safety program must include components for: (1) management commitment and employee involvement; (2) work-site analysis; (3) hazard prevention and controls; (4) training; and (5) evaluation of effectiveness. Management leadership refers to top-down involvement in controlling workplace safety including the identification of at least one individual to respond to complaints about workplace safety and health. The draft rule states that employers must systematically identify and assess "hazards" to which employees are exposed "as often as necessary, and at least every two years," and annually assess the "effectiveness" of its program.
In addition, the draft rule requires employers to provide employees with opportunities to participate in establishing, implementing and evaluating the safety and health program. In this connection, OSHA notes that employers must be careful to comply with the applicable provisions of the National Labor Relations Act, but does not otherwise provide any guidance on the thorny legal issue posed by management-labor teams under that law.
On multi-employer worksites, the draft rule provides that the host employer, analogous to the general contractor, must provide information about hazards, controls, rules, and emergency procedures to all employers (subcontractors) at the workplace and ensure that safety and health responsibilities are assigned as appropriate to other employers at the workplace. In turn, contract employers (subcontractors) are required to ensure that the host employer is aware of hazards associated with its work as well as its controls and to advise the hosted employer of any previously unidentified hazards discovered at the work site.
C. Proposed New Legislation For Whistleblower Protection
The Clinton Administration and OSHA have also been working on a draft bill to bolster the rights of employees to complain about unsafe conditions. Under a draft bill currently being circulated, employees who complain about safety would get increased time to file charges alleging discrimination, from the current 30 days to 180 days. The bill provides that a preliminary investigation of any changes of retaliation would be conducted within 90 days. If the initial findings favor the employee, the Secretary of Labor would be authorized under the draft bill to force the employer to address the hazards that led to the complaint and to reinstate the employee to his or her former position along with compensatory damages (including back pay and other privileges associated with the position). In addition to compensatory damages, the Secretary could order the employer to pay a sum equal to the total cost of expenses, including attorneys' fees, that are incurred by the worker. One significant aspect of the proposed legislation is that although employers could appeal the Secretary's order and request a hearing on the Secretary's findings, those objections would not stay the requirement to reinstate the employee.
The bill is expected to receive a chilly reception in Congress, and its future is unclear. What is clear, however, is that OSHA has announced the introduction of such legislation as a top priority for the upcoming year.
D. Conclusion
The current OSHA administration is an activist administration whose agenda is closely aligned to that of the AFL-CIO. OSHA's "safety" agenda includes items that are, in many cases, only tangentially related to safety and reflect an effort to interject itself into traditional management-labor relations. Employers can continue to expect that in addition to an increasing panoply of regulatory requirements, with sometimes burdensome paperwork requirements, they will face the prospect of increasingly stiff penalties for safety violations. The activist nature of OSHA mandates that employers monitor developments in this area even as they work to confront, and remedy, workplace hazards before they lead to injuries and inspections.