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In 1989, OSHA implemented more than 400 revised and updated PELs because of its concern that the 1971 limits were outdated and based on obsolete science.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.

 

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.