The COVID-19 pandemic has already caused severe disruption to many businesses across the country. Employers will be required to continue to monitor developments and adjust to changing circumstances in the coming weeks and possibly months. We provide the following recommendations for employers in dealing with the many employment-related issues that will inevitably arise.
The Occupational Safety and Health Administration has issued a Notice of Proposed Rulemaking that would rescind the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report). The proposed rule leaves in place the requirement for such establishments to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The proposed rule also requires these establishments to submit their Employer Identification Number (EIN) electronically along with their data submissions.
We hear that question pretty often from employers these days, and for good reason. It is March 2018, 14 months into a new administration, and the Occupational Safety and Health Administration still does not have an agency head.
We have received a number of questions about the current status of OSHA’s new electronic injury and illness reporting rule, upon which we have previously reported here and here. There is, yet again, more to report!
First things first: the implementation date of the rule has been delayed from July 1, 2017, to December 1, 2017. The reason for the delay is to give the new administration an opportunity to determine whether any changes to the rule are warranted as well as to give employers time to familiarize themselves with electronic reporting. The Department of Labor did seek additional comments as part of the process. We will keep you posted regarding any further delays in the implementation of, or changes to, the rule.
Second, the rule will likely go into effect in some form: OSHA announced that its website at which employers can submit their Form 300A electronically will be live as of August 1 here. All employers must submit their 2016 Form 300A via the website before December 1, 2017.
As we previously reported on this blog, OSHA recently made sweeping changes to its injury and illness reporting rule. The agency delayed enforcement of the rule until December 1, 2016. Many industry advocates were hoping for a reprieve, and several industry groups, including the Associated Builders and Contractors and the National Association of Manufacturers, had filed suit, seeking a preliminary injunction to prevent the rule from going into effect. Unfortunately, the injunction was denied and the rule did go into effect on December 1. However, the rule is still being challenged. Interestingly, the incoming administration recently jointly filed a letter with the court along with the plaintiffs, stating that each side planned to move for summary judgment, strongly suggesting that the incoming administration has no plans to revise or revoke the rule. One of the more troubling aspects of the rule was not in the rule itself, but in the preamble to the rule -- OSHA's stated position that it would consider blanket rules that require drug testing of employees after any accident to be unreasonable, i.e., to discourage the reporting of injuries and illnesses. Without announcement, OSHA issued guidance on its position late last year that should ameliorate employers’ concerns. Simply put, employers do not have to have reasonable suspicion of drug use, but reasonable suspicion that drug use could have led to the accident causing illness or injury. OSHA provides the following examples: "Consider the example of a crane accident that injures several employees working nearby but not the operator. The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident. However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate section 1904.35(b)(1)(iv).Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test." So, if an employee on a scaffold dropped a piece of lumber, striking an employee below in an area the employee was allowed to walk, it would not be proper to test the employee below, but it would be proper to test the employee on the scaffold, because operator error -- and possible drug impairment -- could have contributed to the accident. It still remains to be seen whether this rule will be rescinded through the Congressional Review Act or vacated through the lawsuit filed in the Northern District of Texas, but in the meantime, employers should make sure their policies regarding injury and illness reporting comport with the new requirements.
On October 4, 2016, the Occupational Safety and Health Administration issued a press release and announced that it was proposing changes to 18 separate regulations “as part of an ongoing effort to revise provisions in its standards that may be confusing, outdated or unnecessary.” A summary of the proposed changes can be accessed here. The proposals run across a wide spectrum from the technical (i.e., allowing ex-rays to be maintained in digital format); to the procedural (i.e., making the process safety management standard the same for construction and general industry); to the completely understandable (i.e., eliminating any uses of employee social security numbers in exposure monitoring); to the somewhat odd (i.e., eliminating feral cats from the definition of “vermin” in the shipyard equipment regulation). On the last point, the agency press release noted that “OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term ‘feral cats’ from the definition of vermin in the standard.” The deadline for submitting comments to any of the proposals is December 5, 2016.
Last November, we issued an update alerting readers of this blog that in last fall’s budget bill, the Occupational Safety and Health Administration had been given authorization to increase its penalties by up to 82%, to account for inflation for several decades. In order to implement the increase, OSHA had to issue an interim final rule by July 1 that would go into effect by August 1. As expected, OSHA has indeed taken advantage of this authorization to increase its penalties.
As of August 1, OSHA’s new maximum penalty structure is as follows:
Other-than-Serious violation: increased from $7,000 to $12,471;
Serious violation: increased from $7,000 to $12,471;
Repeat violation: increased from $70,000 to $124,709;
Willful violation: increased from $70,000 to $124,709; and
Failure-to-Abate violation: increased from $7,000 to $12,471 per day.
These penalties are a significant increase, and when these new maximum penalties are combined with OSHA’s new enforcement priorities, they may result in citations with total penalty amounts that are higher than previously common.
Most employers traditionally have had little to no interaction with the Occupational Safety and Health Administration (OSHA), the federal agency tasked with overseeing workplace safety. Unless they were inspected by OSHA -- and the 35,820 inspections conducted in FY 2015 pales in comparison to the tens of millions of employers across the country -- most businesses, particularly smaller businesses, may have gone for many years without interacting with the agency. But that is about to change.
Currently, most employers other than those in partially-exempt industries are required to maintain injury and illness reporting records on a log (OSHA Form 300), with supporting documentation (OSHA Form 301, or other equivalent document such as workers compensation records). Each employer then summarizes that information each year onto OSHA Form 300A, which the employer then posts at the workplace from February 1 to April 30. Other than serious injuries such as amputations, fatalities, or accidents requiring hospitalization, which require more immediate reporting, employers have not been required to submit injury and illness data to OSHA. Now, however, many businesses will have to submit injury and illness information periodically to OSHA electronically. Not only that, but OSHA also will post this information online.
The reporting changes affect businesses depending on their size and classification:
Businesses with 250 or more employees. These businesses will have to submit the annual summary form 300A electronically by July 1, 2017; submit the Forms 300, 301, and 300A electronically by July 1, 2018; and then submit Forms 300, 301, and 300A by March 2 annually thereafter.
Businesses with 20-249 employees in “high-hazard” industries. OSHA has compiled a long list of high-hazard industries, including but not limited to hospitals, nursing homes, long-term care facilities, agriculture, utilities, construction, manufacturing, grocery stores, department stores, transportation companies, that must also submit information electronically if they have 20-249 employees, albeit less information than larger businesses. These businesses need only submit Form 300A by July 1, 2017 and July 1, 2018, and then continue submission of Form 300A each year by March 2 thereafter.
In determining business size, the final rule states: “each individual employed in the establishment at any time during the calendar year counts as one employee, including full-time, part-time, seasonal, and temporary workers.”
OSHA claims that Personally Identifiable Information will be removed before the data it receives is released on its web site, but OSHA’s stated reliance on software to perform this function has raised concerns with employers and privacy advocates alike. Also, it is unclear as to what form OSHA’s online publication will take, and how third parties may seek to utilize this information.
The above rule revisions represent a sea change in employers’ interaction with OSHA regarding injury and illness reporting. But OSHA did not stop there. OSHA also published changes in its final rule, effective August 10, 2016, that affect all employers, regardless of size:
Employers must establish a “reasonable” procedure for employees to report work-related injuries and illnesses, and inform employees of that procedure. The rule states that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. OSHA has issued a Fact Sheet stating this obligation may be met by posting the “OSHA Job Safety and Health — It’s The Law” poster from April 2015 or later.
The rule also adds a provision prohibiting discrimination against an employee for reporting a work-related injury, filing a safety or health complaint, or asking to see the employer’s injury and illness logs.
These provisions have raised additional concerns for employers. The rule regarding “reasonable” procedures is targeted at employers’ safety incentive plans. If an employer has a safety incentive plan wherein employees get a bonus, or days off, or an award, if the employee, department, or company has a certain number of days without injury -- so the theory goes -- employees may be hesitant to report injuries and illnesses. It is precisely these kind of incentive plans the new rule intends to eliminate. In addition, Section 11(c) of the Occupational Safety and Health Act, which has certain requirements before OSHA can initiate enforcement action against an employer in federal district court, has been the exclusive provision for employees to make complaints about retaliation for exercising their rights under the Act. To the extent that OSHA now intends to issue citations against employers under a different process -- and even if an individual employee has not alleged or filed a Section 11(c) retaliation complaint -- this will be another sea change in enforcement.
The bottom line is this: employers with 20 or more employees in “high-hazard” industries, and with 250 or more employees in all industries, will have to report their injury and illness information electronically by July 1, 2017, which will be made available to the public in some form with personally identifiable information about employees removed. And, all employers, regardless of size, should review their handbooks, safety incentive plans, and incident reporting policies to ensure they provide a “reasonable procedure for employees to report work-related injuries and illnesses.”
Michael Kinsley once said "A gaffe is when a politician tells the truth." And one gaffe that has often been repeated is Speaker Pelosi's statement from 2010, saying about the Affordable Care Act, "we have to pass the bill so that you can find out what is in it." There was great truth to that statement, as we are now in an age where the public only finds out what was contained in legislation after it has already been passed. Such as the new 144-page budget deal signed into law last week. It was made public just before midnight on October 26, and with little debate, passed the House on October 28, the Senate on October 30, and was signed into law by the President on November 2. And we are now coming to "find out what is in it." Such as a provision allowing OSHA to increase its penalties by up to 82%, to account for inflation since 1990. OSHA's penalty amounts were previously fixed and not indexed to inflation. However, the "Federal Civil Penalties Inflation Adjustment Act" tucked into the budget deal not only allows OSHA to begin increasing its penalties annually to account for inflation, but also allows it to implement a "catch up" increase for not raising its penalties for the past quarter century. If OSHA elects to do so -- and as the sun rises in the east, OSHA will elect to do so -- it must implement an interim final rule by July 1 that will go into effect by August 1. OSHA's current maximum penalties are $7,000 (for other-than-serious and serious violations), and $70,000 (for repeat and willful violations). Those amounts will likely increase to about $12,500 and $125,000 -- and then increase annually thereafter. For any employer subject to an inspection, whether due to a complaint, referral, emphasis program, or the site-specific-targeting program, the stakes are about to increase.
Perhaps it is the end of racing season in Saratoga, but the federal employment agencies are certainly looking to hit the trifecta against independent contractors, franchisors, parent companies, and similar entities under the guise of expanding the definitions of employer and employment.
First, a little background: on April 28, 2014, the U.S. Senate confirmed David Weil as the new head of the U.S. Department of Labor’s Wage and Hour Division. Before he was confirmed, Weil had published a book entitled The Fissured Workplace, a dense lament on the perceived evils of independent contracting and franchising, and companies that Weil claims attempt to "have it both ways" by not bearing responsibility for the workers from whom they ultimately benefit by virtue of the work performed. It was thus not unexpected that Weil would seek to remedy those perceived evils during his tenure; however, the extent to which this philosophy has reached other agencies is surprising.
Fast-forward to July 2015, during which Administrator Weil issued an Interpretation turning the classic test for independent contractor status on its head. The central tenet used to be control -- does the company set the worker's hours, have the power to discipline the worker, supervise and direct the worker, etc., or instead does the company simply give the worker the contours of the job, and pay contingent on the acceptability of the work? The new Administrator’s Interpretation, however, focuses on the "economic realities" of the work arrangement, and whether the worker is "economically dependent" on the company. Most workers have some dependence on the source of the income, and therefore unless a worker has multiple sources of income to demonstrate that he or she is truly in business for himself or herself, many people who currently consider themselves to be independent contractors are now employees in the eyes of the Wage and Hour Division. As Weil puts it in his interpretation: "Thus, applying the economic realities test in view of the expansive definition of 'employ' under the Act, most workers are employees under the FLSA."
But the Wage and Hour Division is not the only agency to get into the act. On August 27, the National Labor Relations Board issued a controversial decision in the Browning-Ferris case, basically holding that a staffing agency, franchisor, or contractor that reserves the right to make decisions affecting a worker’s employment, even if the entity does not actually exercise that right, will likely be considered a joint employer. In short, the NLRB is also seeking to follow Weil’s lead and fuse “the fissured workplace” to hold contractors and other types of entities responsible for possible employment violations under the guise of joint employment.
Not to be outdone, OSHA is going for the trifecta. Late last month, the International Franchise Association disclosed that it is receiving reports from its members that OSHA investigators are seeking information and documents during inspections to tie franchisors into those inspections in order to cite them as employers along with franchisees. The IFA is concerned that OSHA is (at the behest of unions such as SEIU) looking to simply treat franchisors as employers regardless of the details of a franchisor-franchisee relationship. Indeed, the IFA obtained a copy of an internal OSHA memo that shows that OSHA is looking to follow the WHD and NLRB’s lead. The memo states, in part:
"Issue Presented for OSHA:Whether for purposes of the OSH Act, a joint employment relationship can be found between the franchisor (corporate entity) and the franchisee so that both entities are liable as employers under the OSH Act.Ultimate determination will be reached based on factual information about the relationship between the franchisor and franchisee over the terms and conditions of employment. While the franchisor and the franchisee may appear to be separate and independent employers, a joint employer standard may apply where the corporate entity exercises direct or indirect control over working conditions, has the unexercised potential to control working conditions or based on the economic realities. As a general matter, two entities will be determined to be joint employers when they share or codetermine those matters governing the essential terms and conditions of employment and the putative joint employer meaningfully affects the matters relating to the employment relationship such as hiring, firing, discipline, supervision and direction."
The IFA is seeking more information from OSHA via the Freedom of Information Act, and its full statement can be found here.
In short, any entity with franchisees, independent contractors, or other vendors should be well aware that any investigation or inspection by the federal agencies tasked with enforcement of labor and employment laws -- the National Labor Relations Board, the U.S. Department of Labor’s Wage and Hour Division, and now, OSHA -- may seek to expand the investigation or inspection well beyond just the franchisee or contractor inspected, to any franchisor, parent company, or beneficiary of a contract for services.
On June 1, 2015, the United States Occupational Safety and Health Administration (“OSHA”) published A Guide to Restroom Access for Transgender Workers. OSHA stated that the “core principle” of the Guide is as follows: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” The Guide serves as an extension to OSHA’s longstanding rule that, as a matter of health and safety, all employees must be provided a sanitary toilet facility in order to avoid “the adverse health effects that can result if toilets are not available when employees need them.”
According to the Guide, there are approximately 700,000 adults in the United States who are transgender -- meaning that their internal gender identity is different from the sex they were assigned at birth. OSHA explained that restricting employees to using “only restrooms that are not consistent with their gender identity or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety.” This could potentially lead to an unsafe situation where transgender employees avoid using restrooms entirely while at work. Therefore, the Guide’s “Model Practices” explain that an employee who identifies as a man should be permitted to use men’s restrooms, and an employee who identifies as a woman should be permitted to use women’s restrooms, and that the decision of which restroom to use should be made solely by the employee. Notably, employees are not required to submit medical or legal documentation of their gender identity in order to have access to the restroom of their choosing.
This Guide does not come as a surprise given the actions taken recently by the Office of Federal Contract Compliance Programs, Equal Employment Opportunity Commission, and United States Department of Labor in acknowledging the rights of transgender employees to use the restroom that is consistent with their gender identity.
Unfortunately, OSHA did not provide much guidance for employers, stating simply that “employers need to find solutions that are safe and convenient and respect transgender employees.” OSHA also did not provide any guidance indicating how employers should address situations where employees raise concerns about a transgender employee using their restroom.
Nevertheless, employers must be conscious of and follow OSHA’s guidance, regardless of whether adherence makes other employees uncomfortable, or else they will potentially invite legal action, including the filing of OSHA complaints or EEOC charges. Employers should also review their policies (if any) to ensure that they cannot be construed as prohibiting transgender employees from using the restroom that is consistent with their gender identity.
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.