OSHA Issues Far-Reaching Directive On Workplace Violence

September 11, 2011

By Michael D. Billok

On September 8, 2011, the Occupational Safety and Health Administration (OSHA) issued its first ever Compliance Directive to address workplace violence. In the past, OSHA had issued citations to employers for exposing their employees to workplace violence -- until Administrative Law Judge Nancy Spies issued her decision in the Megawest Financial case in 1995. In that case, OSHA attempted to use the General Duty Clause of the Occupational Safety and Health Act—which imposes a duty upon employers to keep their workplaces free of “recognized hazards”—to argue that because there had been earlier attacks on employees by tenants of an apartment complex, the employer was liable when employees were again attacked by tenants. Judge Spies rejected that argument, finding the Act was not intended to “police social behavior” and that employers may reasonably believe “that the institution to which society has traditionally relegated control of violent criminal conduct, i.e., the police, can appropriately handle the [violent criminal] conduct.” Since then, OSHA has issued few workplace violence citations.

Judge Spies is now retired, and OSHA is taking another bite at the apple. OSHA’s new directive contains a laundry list of recommendations for “all industries and administrative workplaces.” These include conducting a workplace violence hazard analysis, revising the physical plan of the workplace, training employees, and implementing “engineering controls” that may even include hiring a security consultant.

Employers are required to keep their workplace free of “recognized hazards,” but inherent in that requirement is the assumption that employers can control the condition for which it may be cited. For this reason, OSHA’s attempt to hold employers liable for violent, criminal acts of third parties—who are beyond the control of employers—is troubling.

OSHA Releases Heat-Related Illness App

August 23, 2011

OSHA recently released a free application for mobile devices that is intended to enable workers and supervisors to monitor the heat index at their work sites in order to prevent heat-related illnesses. The Secretary of Labor, Hilda Solis commented, “Summer heat presents a serious issue that affects some of the most vulnerable workers in our country, and education is critical to keeping them safe.” The application, which is available in English and Spanish, combines heat index data from the U.S. National Oceanic and Atmospheric Administration with the user’s location to determine necessary protective measures. The application also provides information for supervisors on how to gradually build up the workload for employees and tips on identifying signs and symptoms of heat-related illnesses. The application further permits users to contact OSHA directly. The application is designed for devices using an Android platform. OSHA intends to release versions for BlackBerry and iPhone users shortly.

OSHA’s renewed focus on heat-related illnesses is a good reminder that the law generally requires employers to take various proactive measures to protect employees working in the heat, including, but not limited to, providing plenty of water, scheduling rests breaks in the shade or air-conditioned spaces, planning heavy work early in the day, preparing for medical emergencies, gradually building up work for new employees, and training employees on hazards related to heat illnesses. Information for employers about using the heat index to calculate and address risks posed to workers also is available through OSHA's new Web-based tool "Using the Heat Index: Employer Guidance."  OSHA's other educational and training tools about heat illnesses prevention, available in English and Spanish, can be found here

OSHA Revamps How It Will Respond To Whistleblower Complaints

August 22, 2011

By Patrick V. Melfi

Earlier this month OSHA announced that it will restructure the agency’s Whistleblower Protection Program.  The changes come in response to a Government Accounting Office report that was critical of the way OSHA responded to whistleblower complaints (including inconsistent practices at the Regional level and the need for more training of inspectors).  In response, OSHA has revamped the program to include the following changes: (1) a requirement that investigators interview the complainant in all cases; (2) having the program report directly to the Assistant Secretary; (3) several new training initiatives (including a national whistleblower training conference in September which will be attended by all whistleblower investigators; and (4) issuing a new edition of the Whistleblower Investigations Manual that updates current procedures and includes information on the new laws enacted (the manual was last updated in 2003).

The agency has also made a $6.1 million budget request for fiscal year 2012 to add 45 new whistleblower investigators.  The significant backlog of cases in its system is a recurring criticism of OSHA’s program.  David Michaels, the Assistant Secretary for Occupational Safety and Health, announced that the agency has eliminated the backlog of 150+ appeals and that the changes just announced should make the initial complaint intake and case processing more efficient.

Employers Should Be Cautious In Entering OSHA Corporate-Wide Settlements

June 29, 2011

By Michael D. Billok

When an OSHA citation goes to the very heart of a business--such as requiring delivery-company employees never to place boxes on the floor while sorting them for shipment--it is sometimes best to enter into a corporate-wide settlement agreement (CSA), so both OSHA and the company have clearly defined expectations of what methods and workplace conditions will or will not lead to a citation. But companies must be careful. Failure to follow the terms of a CSA can create even greater liability. The largest OSHA citation in history--over $50 million dollars--was not a new citation, but rather a citation issued to BP in 2009 for failure to adhere to a CSA it had entered into in 2005. BP eventually agreed to pay the entire amount of the citation, and also agreed to spend $500 million more on a comprehensive safety and health program.

Why bring this up now? Last week, OSHA--without announcement or fanfare--issued a new directive regarding CSAs that are both national and regional in scope.  The directive states that CSAs may "go ... beyond the subject of the citations to include additional safety and health program enhancements" that were not the reason for the inspection or citation. CSAs may require employers to hire additional safety and health employees, or hire safety and health independent consultants to provide recommendations--but when a company does so, it may cede control to such consultants, as it generally must implement the recommendations or be subject to a failure-to-abate citation.  The new directive also sets a firm two-year time limit for CSAs. This firm time limit gives employers less time to make the agreed-upon changes before being subject to failure-to-abate citations.

A CSA may be the best outcome for both the employer and OSHA following a citation, but employers should be aware of the risks associated with CSAs before suggesting it as an alternative to litigation.

OSHA Actively Engaging Latino Workers

April 6, 2011

By Michael D. Billok

The Occupational Safety and Health Administration (OSHA) has been making significant efforts to educate the Latino workforce regarding safe work practices, OSHA’s safety and health regulations, and workers’ rights. This initiative began in force in April of 2010, when OSHA held the first National Action Summit for Latino Worker Health and Safety in Houston, Texas. Over 1,000 people attended the summit, the stated goal of which was “[r]educing injuries and illnesses among Latino workers by enhancing knowledge of their workplace rights and improving their ability to exercise those rights.” Workshops included topics such as “Innovative Partnerships and Effective Education for Latino Workers: Focus on Latino Construction Workers,” and “Workers’ Rights Under OSHA and DOL: Focus on Construction Hazards.”

Since that initial national summit, OSHA has held several regional summits, including one in northern New Jersey in July, 2010, and another in New York City in November. The latter summit featured a 15-minute skit entitled “How to File an OSHA Complaint.” In February, 2011, OSHA held a summit in Oakland, California, that was featured on the evening Telemundo and Univision newscasts throughout the entire San Francisco Bay Area. Future OSHA summits are scheduled for southern New Jersey and Philadelphia in April. The April 10, New Jersey summit is entitled “Making a Difference: Learn about Your Worker Rights and How to Voice Concerns When Those Rights are Violated.”

Clearly, OSHA is encouraging the Latino workforce to look for, and report, any suspected health or safety violations. As Dr. David Michaels, the head of OSHA said in a recent speech, OSHA is trying to “inoculate” the Latino workforce “against rogue employers who seek to exploit them.” With that in mind, how might this initiative affect your workplace, and what actions should you be taking?

  • Ensure that all of your employees—both those for whom English is their primary language and those for whom it is not—fully understand your company’s safety and health policies and procedures. It is the employer’s obligation to ensure employees are not exposed to hazards, and thus the employer’s obligation to ensure that non-English speaking employees understand the safety requirements of a particular practice. OSHA provides a list of resources for employers with Latino employees, including a website, and its 800 number with Spanish-speaking operators, 1-800-321-OSHA.
  • Make sure that all of your employees, regardless of their primary language, know your company’s procedure for reporting any workplace injuries or illnesses, and that they can report any workplace injury or illness without fear of reprisal.
  • Remember the Occupational Safety and Health Act explicitly prohibits retaliatory or discriminatory action against an employee who has raised an OSHA violation. For example, OSHA recently settled a whistleblower case against two construction companies, where an employee was allegedly fired for complaining about an unsafe crane lift. The companies paid $17,500 in back wages.

Workplace safety is a universal issue that must span any language barriers. By ensuring that your non-English speaking employees are fully cognizant of your workplace’s safe work practices and policies, you can minimize workplace hazards and reduce the possibility of a complaint-based inspection.

A "Feasible" Shortcut: OSHA Avoids Rulemaking in Effort to Require Employers to Install Noise-Reducing Engineering Controls

December 8, 2010

By Michael D. Billok

When a federal agency like the Occupational Safety and Health Administration (OSHA) wants to make new rules, it is supposed to engage in formal, “notice-and-comment” rulemaking: it first publishes a proposed rule, allows the public to submit comments, and then issues a final rule, which may or may not contain revisions based on the comments. Formal notice and comment rulemaking is time consuming and places significant administrative burdens on the agency.

In the last year, OSHA has avoided the formal rulemaking process by taking informal actions under the guise of enforcement policies. For example, in November 2009 it issued a “Fact Sheet” of specific measures that all retail stores should implement to protect their employees from unruly customers. Earlier this year, OSHA issued an open letter to employers stating that the Agency will issue a citation to any company whose work requirements encourage employees to text while they drive.

Most recently, OSHA announced an abrupt proposed change in enforcement policy that could have significant financial consequences for many companies. OSHA’s Hearing Conservation standard requires employers to protect employees from exposure to high noise levels. Employers must utilize “feasible administrative or engineering controls” when employees are subjected to particular sound levels set forth in the OSHA standard. At issue is OSHA’s interpretation of the term “feasible.” For almost 30 years, OSHA has allowed employers to rely on the use of inexpensive personal protective equipment such as earplugs instead of costly engineering and administrative controls, such as installing sound dampeners, reconstructing the facility to reduce noise levels, or reducing individual employee exposure time by hiring additional employees to share the load. If the personal protective equipment reduced noise exposures to acceptable levels and was less expensive than administrative and engineering controls -- which is almost always the case – it satisfied the legal standard.

Now, OSHA intends to interpret the definition of “feasible” in an entirely new way. In brief, OSHA intends to take the position that as long as administrative or engineering controls are “capable of being done” without threatening the company’s ability to stay in business, the employer has to implement them. It can no longer simply issue less costly personal protective equipment to employees. If the new interpretation stands, a workplace where just one employee is exposed to an eight-hour average sound level slightly over 90 decibels may have to spend tens of thousands of dollars on equipment, guards, sound dampening equipment (or even a second employee) to reduce the eight-hour average decibel level per employee to below 90, instead of simply issuing effective hearing protection. While engineering and administrative controls are always preferred because they reduce noise exposure without relying on employees to wear their personal protective equipment, OSHA has not offered any data or evidence to support its apparent view that employers nationwide should be spending millions of dollars in noise reduction measures during a recession, when earplugs may be just as safe and effective.

No doubt anticipating the likely reaction from employers, OSHA announced the reinterpretation as a “proposed interpretation,” and requested comments, but was careful not to announce it as a proposed rule (which would require the agency to fulfill various requirements, such as considering the cost to employers). While the initial comment period was set to expire December 20, 2010, various industry groups such as the National Association of Manufacturers and the U.S. Chamber of Commerce—who contend that such a change requires formal notice-and-comment rulemaking—succeeded in obtaining a 90-day extension to March 20, 2011. Any company that wishes to comment on this proposed “interpretation” may do so electronically at www.regulations.gov, by fax to 202-693-1648, or by mail to OSHA Docket Office, Docket No. OSHA-2010-0032, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Any submissions should contain the docket number, OSHA-2010-0032.

OSHA Kicks Off 2010 Inspection Program

November 18, 2010

By Patrick V. Melfi

On October 22, 2010, the Occupational Safety and Health Administration (“OSHA”) announced that it has begun its 2010 Site-Specific Targeting (“SST”) Program, which will conduct comprehensive inspections of worksites across the country. It is incumbent upon employers to know how OSHA selects the worksites that will be inspected, and whether their worksites will be included in this targeted enforcement effort.

OSHA selects worksites to inspect based upon injury and illness data that is reported to OSHA. For the inspection year that has begun, OSHA’s selections depend upon injury and illness data for calendar year 2008 that was collected by OSHA in 2009. Thus, employers will be inspected over the next year, into 2011, based on data that was collected in 2008.

In March 2010, OSHA initially selected 14,826 worksites that may receive SST inspections based upon their injury rates, and sent each of these worksites a letter informing them of a possible future inspection. Click here to see if your worksite is included on this preliminary list.
From that initial list of 14,826 worksites, OSHA has selected approximately 4,100 worksites as “primary” inspection targets, which OSHA Area Offices are directed to inspect first. Although the list of approximately 4,100 worksites has not been published by OSHA, it is possible for an employer to determine whether it is on the list by following these steps:

1. Calculate your DART and DAFWII rates.

Days Away, Restricted, or Transferred (DART) rate:
The DART rate accounts for injury and illness cases involving days away from work, restricted work activity, or transfers to another position (the total of columns H and I on the OSHA-300 log).
DART rate = 200,000 * (# of DART injuries) / (Total # of hours worked by all employees for calendar year).

Days Away From Work Injury and Illness (DAFWII) rate:
The DAFWII rate accounts for injury and illness cases involving only days away from work (column H on the OSHA-300 log).
DAFWII rate = 200,000 * (# of DAFWII injuries) / (Total # of hours worked by all employees for calendar year).

2. Compare your DART rate AND your DAFWII rates to the criteria below to determine if your site is a primary inspection site.

Manufacturing Establishments with a DART rate greater than or equal to 7.0, or a DAFWII rate greater than or equal to 5.0, are primary inspection sites. There are approximately 3,300 manufacturing primary inspection sites.

Non-manufacturing establishments (except for Nursing and Personal Care Facilities) with a DART rate greater than or equal to 15.0, or a DAFWII rate greater than or equal to 14.0, are primary inspection sites. There are approximately 500 non-manufacturing primary inspection sites.

Nursing and personal care facilities with a DART rate greater than or equal to 16.0, or a DAFWII case rate greater than or equal to 13.0, are primary inspection sites. There are approximately 300 nursing and personal care facility primary inspection sites.

Even if your site is not one of the 4,100 primary inspection sites, you may still receive an SST inspection if your facility is on the list of 14,826. Once all primary inspection sites in an area have been inspected, OSHA will inspect secondary inspection sites as follows:

Manufacturing Establishments with a DART rate of 5.0 or more but less than 7.0, or a DAFWII case rate of 4.0 or more but less than 5.0, are secondary inspection sites.

Non-manufacturing Establishments with a DART rate of 7.0 or more but less than 15.0, or a DAFWII case rate of 5.0 or more but less than 14.0, are secondary inspection sites.

Nursing and Personal Care establishments with a DART rate of 13.0 or more but less than 16.0, or a DAFWII case rate of 11.0 or more but less than 13.0, are secondary inspection sites.
While employers should be prepared for an OSHA inspection at any time, employers who are on the primary inspection list should take additional precautions and consult counsel as necessary in preparation for an inspection sometime in the coming months.

OSHA Revises Policy on Outreach Training Programs

November 16, 2010

By Patrick V. Melfi

The Occupational Safety and Health Administration’s (“OSHA”) Outreach Training Program courses are taught by independent trainers and focus on construction or general industry safety and health hazard recognition and prevention. Over the past three years, over 1.6 million students have received training through this voluntary program. In an October 27, 2010 News Release, OSHA announced that it has revised its policy for all Outreach Training Programs to limit the number of hours each day a student may spend in OSHA 10 and 30-hour training classes.  Effective immediately, OSHA now requires trainers to limit classes to a maximum of 7 ½ hours per day. The 10-hour courses must be conducted over a minimum of two days and the 30-hour courses must be conducted over at least four days.

The change in policy was sparked by concern that students were missing essential safety and health training as a result of long, mentally-fatiguing class days. Before the change, there was no limit on how long the classes could last each day. Students in the 10-hour course could be sitting in class for 13 hours a day, with lunch and necessary breaks factored in. According to Assistant Secretary of Labor for OSHA, David Michaels, “[l]imiting daily class hours will help ensure that workers receive and retain quality safety training.” OSHA also became concerned after random audits and unannounced monitoring visits revealed that some classes were not meeting the 10- and 30-hour program time requirements.

Classes that exceed 7 ½ hours per day or fail to meet all program content requirements will not be recognized by OSHA and students will not receive completion cards for such courses. However, trainers may submit written requests for exceptions to the new requirements based on extenuating circumstances. OSHA has also established an outreach trainer watch list, and a fraud hotline at 847-725-7810, which the public can call to file complaints about program fraud and abuse.

OSHA to Apply General Duty Clause to Distracted Driving

October 4, 2010

By Michael D. Billok

Over the past two years, the Occupational Safety and Health Administration (“OSHA”) has sought to expand significantly the reach of the General Duty Clause by issuing citations to employers for workplace violence and ergonomics issues. This expansion will soon reach another area: distracted driving. The agency plans to issue General Duty Clause citations to companies whose employees text while driving. This promise comes directly from the Assistant Secretary of Labor for OSHA David Michaels: "When OSHA receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, we will investigate and where necessary issue citations and penalties to end this practice." If you have employees who respond to hundreds of e-mails a day, with rapid response times required, and who frequently or occasionally travel during work time as part of their duties, you may receive a visit or an inquiry from OSHA. The impact on employers could be significant. According to a recent Pew Research Poll, 27% percent of all adults admit to texting while driving. Most troubling is the assertion that the agency will cite employers that "create incentives that encourage or condone" texting while driving. Employers that do not "condone" the practice may still receive citations if the agency concludes that an employer that expects fast responses to calls or e-mails thereby "encourages" employees who are driving to respond to texts or e-mails, instead of using a hands-free device or pulling off the road.

Employers can most effectively protect themselves from this enforcement effort by implementing and enforcing strong policies against the practice of texting while driving. Employees should be required to sign a policy explicitly stating they agree not to text while driving during work time, either as part of an employee handbook or when they receive any company-issued cell phone or texting device. Further, any employees found to be texting while driving during work time should be disciplined, up to and including termination.


OSHA Issues High Penalty Failure-To-Abate Citations

August 11, 2010

By Michael D. Billok

An employer that has entered into a settlement agreement with OSHA, or that has been found in violation of OSHA regulations or the general duty clause--either by order of an Administrative Law Judge or as a consequence of accepting a citation--should adhere to all provisions of any agreement, and abate all cited conditions. An OSHA Area Office may assess a failure to abate penalty of up to $7,000 per citation item per day for each day the condition is not abated. Normally, the maximum time period is 30 days, for a maximum penalty per citation item of $210,000, but that time period may be increased in exceptional circumstances.

Last week, OSHA issued citations of over $200,000 each to two New York businesses. The first, totaling $210,000, was issued to Broadway Corp., doing business as Broadway Concrete, for failing to abide by a settlement agreement entered into after first receiving a citation for lack of fall protection back in 2008. OSHA conducted a follow-on inspection in January of this year, and in the new citation alleges that Broadway Concrete performed work at eight sites in New York City without adequate fall protection, in violation of the settlement agreement. The second citation issued last week, totaling $247,000, was issued to U.F.S. Industries, doing business as Sally Sherman Foods, for failing to abate conditions previously cited--lack of fall protection, machine guarding, and inadequate lockout/tagout--following a prior inspection at its Mount Vernon facility.

New York Area Offices have recently issued several other high-penalty failure-to-abate citations, suggesting that this may signal a new direction in enforcement in Region 2 (which includes New York and New Jersey):

  • On July 20, OSHA issued citations totaling $112,000 in penalties to a Home Depot in West Nyack, chiefly for failure to abate items regarding potential employee exposure to methylene chloride.
  • On June 2, OSHA issued citations totaling $346,500 in penalties to CEC Elevator Cab Corp in the Bronx, chiefly for failure to abate items regarding various programs and training.
  • On April 28, OSHA issued citations totaling $107,000 to the Service Manufacturing Group in Buffalo, chiefly for failure to abate items regarding cranes, slings, fire extinguishers, and other issues, at its sheet metal fabrication plant.

Last, but certainly not least, last week OSHA issued the third largest citation in history, $16.6 million to several contractors and subcontractors for alleged violations associated with the February 7, 2010 explosion at the Kleen Energy power plant in Middletown, CT. (The two largest OSHA citations were issued to BP in association with a 2005 explosion at its Texas City refinery, and alleged failures to abate conditions following the expiration of a settlement agreement.) 

UPDATE:  SInce this post was first published on August 11, another New York Area Office just issued a six-figure failure-to-abate citation, this time a $114,750 citation to Pierce Industries, a Rochester machine shop, for failing to correct a variety of hazards following an initial citation issued in December 2009.


July 6, 2010

By Patrick V. Melfi

The Occupational Safety and Health Administration (OSHA) may be considering an update of its list of permissible exposure limits (PELs) for many regulated chemicals and recognized air contaminants. According to BNA’s Daily Labor Report, at the May 26, 2010 American Industrial Hygiene Conference and Expo in Denver, OSHA Administrator David Michaels told the group that the Agency is in the process of assembling a task force to examine the possibility of updating current PELs. Most of the PELs have remain unchanged since first being set by OSHA in 1971, and revising the limits may be easier said than done. Because of that difficulty, Administrator Michaels urged that “all of us in the occupational safety and health community have to engage in support of this process because it is a very difficult one.”

This is not the Agency’s first attempt at implementing PEL revisions, and a prior attempt was not successful. By way of background, an employer is required under the “General Duty Clause” of the Occupational Safety and Health Act of 1970 to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The Act also requires employers to “comply with occupational safety and health standards promulgated” by OSHA. Pursuant to this authority, OSHA promulgated numerous PELs for air contaminants in 1971; these standards are organized into three industries: general industry, shipyard employment, and the construction industry.

In 1989, OSHA implemented more than 400 revised and updated PELs because of its concern that the 1971 limits were outdated and based on obsolete science. In response, however, representatives from various industries and associations (including the AFL-CIO) challenged the updated PELs in court, claiming that OSHA had not followed the proper procedures for making the revisions and that there was not enough scientific evidence or support to justify the updates. Interestingly, the arguments by the various groups that joined together in the lawsuit varied dramatically, from claims that updated PELs were too low to arguments that they were too high. After years of litigation, the Eleventh Circuit Court of Appeals, based in Atlanta, refused to enforce any of the updated PELs and concluded that “OSHA has lumped together substances and affected industries and provided such inadequate explanation that it is virtually impossible for a reviewing court to determine if sufficient evidence supports the agency’s conclusion.”

Now, it appears the Agency has again set its sights on revising and updating PELs – almost forty years after the standards were first set and more than twenty years after its last failed attempt. It remains to be seen precisely what approach OSHA will take or what impact such changes may have on employers. However, as this agency initiative develops, employers and associations should monitor it and take an active role if OSHA solicits their input.


New OSHA Initiative Targets Underreporting of Workplace Injuries

February 22, 2010

By Patrick V. Melfi

The U.S. Occupational Safety & Health Administration (“OSHA”) recently launched an enforcement initiative focused on identifying employers who underreport workplace injuries and illnesses. This initiative—which OSHA has classified as a National Emphasis Program (“NEP”)—was prompted by recent government reports which found that a high percentage of workplace injuries and illnesses are not being reported by employers. Accordingly, employers should be mindful of the NEP, and that OSHA has made clear that its investigators will be paying particularly close attention to workplace policies and practices which have the effect of discouraging employees from reporting their job-related injuries and illnesses.

The Occupational Safety and Health Act of 1970 (the “Act”) requires employers to maintain accurate records of, and make periodic reports on, work-related deaths, injuries and illnesses. 29 U.S.C. §657(c). OSHA has also promulgated detailed regulations implementing these requirements. See 29 C.F.R. §§1904 et seq. The principal record employers use for this purpose is OSHA's Form 300 (“Log of Work-Related Injuries and Illnesses”). For each work-related injury and illness that requires medical treatment beyond first aid, employers must use the Form 300 to record certain information, including a brief description of the injury or illness and the number of days the worker was away from work. Employers are also required to describe each work-related injury and illness on OSHA’s Form 301 (“Injuries and Illnesses Incident Report”).

Despite these requirements, however, a recent report issued by the U.S. Government Accountability Office (“GAO”) found that workplace injuries and illnesses are being significantly underreported. Moreover, the GAO report found that certain employer policies and practices, which discourage workers (sometimes unintentionally) from reporting their injuries and illnesses, are a “primary factor” causing this trend. According to the GAO, its investigation revealed that “workers may not report a work-related injury or illness because they fear job loss or other disciplinary action, or fear jeopardizing rewards based on having low injury and illness rates.”

The GAO report followed a separate—and more scathing—report on the same topic published by the U.S. House of Representatives’ Committee on Education and Labor. This report, like the GAO report, claimed that work-related injuries and illnesses are being “chronically and even grossly underreported” by employers. Further, the report likewise found that employer “disincentives” have played a major role in this underreporting, and also emphasized that these practices can have a catastrophic impact on worker safety.

For example, the House report repeatedly cited the 2005 British Petroleum (“BP”) refinery fire in Texas, which killed 15 workers and injured at least 170 others, as an example of the harms presented by underreporting:

Programs that have the result of discouraging workers from reporting incidents that may be predictive of future or more serious accidents can have a detrimental effect on worker safety. The Chemical Safety Board, in its report on the 2005 BP Texas City explosion that killed 15 workers, noted that one thing missing at BP was a ‘reporting culture where personnel are willing to inform managers about errors, incidents, near-misses, and other safety concerns.’ When workers were not encouraged to report, managers did not investigate incidents or take appropriate corrective action.

The 2005 BP refinery fire resulted in record OSHA fines and penalties. BP originally settled with OSHA and agreed to $21 million in penalties. More recently, BP was assessed an additional $88 million in penalties because of alleged new violations at the Texas refinery and its failure to abate earlier violations.

Both the GAO and House reports prompted OSHA to issue its NEP and to concurrently shift its focus towards employer practices and policies which may lead to the underreporting of workplace injuries and illnesses. In fact, the NEP specifically instructs OSHA investigators to ask employees the following questions during audit-related interviews:

• Have you ever been encouraged not to report an injury or illness or been encouraged to report an injury or illness as a non-work-related event or exposure?
• Are there any safety incentive programs, contests, or promotions or any disciplinary programs here? Do these — or anything else — affect your decision whether to report an injury or illness?

Significantly, the NEP makes clear that OSHA also has its sights set on safety incentive programs, which, although well-intended, may nevertheless have the effect of pressuring workers not to report their injuries. As a matter of policy, OSHA has not adopted any specific directives addressing safety incentive programs, but officials are plainly looking towards these types of initiatives with a strong measure of skepticism—particularly where the program links the incentives to the number of injuries reported or to some other similar metric. In contrast, incentive programs which are more proactive in nature—such as ones rewarding employees who attend safety training sessions or who demonstrate exemplary safety practices—are likely to face less skepticism from OSHA.

The NEP is currently limited to select industries with historically high injury rates (including animal slaughterhouses, steel and iron foundries, and nursing care facilities), but OSHA may expand the program beyond this group. With respect to the construction industry, for example, OSHA has stated that “recordkeeping in the construction industry has a long history of complexity and questions raised due to the nature of the workforce associated with mobile worksites.” Given this concern, OSHA has stated that the NEP will include several pilot inspections of construction employers in order to better understand how to approach potential underreporting issues within the industry on a broader scale.

Employers investigated by OSHA—whether through the NEP or through an independent audit—and subsequently found to have violated their record-keeping obligations may be subject to appropriate citations and monetary penalties. The corresponding financial liability can be significant, particularly where suspect record-keeping practices are pervasive, as OSHA has in the past “stacked” penalties for multiple violations. Additionally, employers should be mindful that, under Section 11(c) of the Act, workers are protected from being discriminated against on the basis of any protected activity. 29 U.S.C. §660(c). This “protected activity” expressly includes the reporting of work-related injuries and illnesses. See 29 C.F.R. §1904.36.

Accordingly, employers who actively discourage their employees from reporting workplace injuries or illnesses may run afoul of the Act. In this regard, Section 11(c) issues are clearly on OSHA’s priority list, as evidenced by recently publicized enforcement actions which entailed considerable penalties and fines. See, e.g., OSHA Regional News Release, “Illinois-based Railroads Ordered by U.S. Department of Labor to Compensate Employee Fired for Reporting Work-Related Injury” (February 11, 2010) (assessing $80,453 in penalties); OSHA Regional News Release, “U.S. Labor Department’s OSHA Finds Metro North Commuter Railroad Co. Retaliated Against Four Employees Who Reported Work Injuries” (June 18, 2009) (assessing $300,000 in punitive damages).

So, what can employers do to avoid liability for potential reporting violations and/or Section 11(c) discrimination claims? Among other things, companies should review, and, if necessary, modify, their current polices, practices, and procedures to ensure that workers are being affirmatively encouraged to report injuries and illnesses. Along the same lines, companies should also incorporate a policy statement that workers will be protected against any unlawful retaliation for making such reports. Additionally, employers should carefully consider whether safety incentive programs already in place may have the unintended consequence of discouraging workers from reporting injuries and illnesses, and, if so, modify these programs accordingly. More generally, employers should also consider conducting a safety and health audit of their operations to ensure compliance with all applicable OSHA regulations.