OSHA Changes Are Coming—Or Here

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Auman, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@amfdayton.com.

June 1, 2011

Keeping up with changes in Occupational Safety and Health Administration (OSHA) regulations is critical for all construction firms, including those in the mechanical insulation industry. Changes in the OSHA Field Operations Manual that Dr. David Michaels, OSHA Administrator, announced in spring 2010 affect all employers. Pending legislation may also affect the construction industry. Following are some of the most critical issues.

Increased Penalties

Changes to the OSHA penalty structure were made with the goal of increasing the average penalty for citations. These changes in the Field Operations Manual were put into effect by most OSHA area offices in October 2010.

It appears OSHA felt the average penalty had decreased to such a low level that employers were not taking penalties seriously. This author has counseled some employers who indicated that rather than spend money to get into compliance, they prefer to take their chances on getting caught. They felt that the low potential cost of fines, even with possible attorney fees, were worth saving the cost of compliance for a few years^#151;or forever. OSHA is trying to send the message that it is no longer a good business decision to work out of compliance and unsafely.

This author has been seeing a significant increase in penalties, even for “first-time offenders.” For example, one employer is faced with fines for two serious violations in the amount of $12,600. Past experience with this employer indicates that at this time last year the penalties for these same violations would have been no more than $6,000.

One of the most significant changes is a mandate that OSHA Area Directors are restricted in their ability to negotiate penalty reductions and OSHA fines at the informal conference level to 30 percent of the proposed penalty. In other words, employers can no longer go into an informal conference with the idea that they are going to negotiate the penalty down to ten cents on the dollar.

In addition to this change, Dr. Michaels also modified the initial reduction for size an employer can receive in the calculation of the assessed penalty. In the past, an employer with fewer than 25 employees enjoyed a 60 percent reduction of the initial assessed fine; that reduction has changed to 40 percent. Other size-based penalty reductions have been modified respectively.

Since the changes in the Field Operations Manual went into effect, there has been a definite change in how OSHA establishes the initial assessed penalty. Before October 2010, OSHA fines usually began at $5,000 or lower for a serious violation, prior to any size, good faith, or history reductions. Now these fines are more likely to be initially assessed at $7,000 per violation. In addition, for purposes of determining whether an employer is entitled to a reduction for a good history, the period to be considered has been increased from 3 to 5 years. The employer can still receive a 10 percent reduction if it has no serious, repeat, or willful violations within the preceding 5 years, but now it can receive a 10 percent increase in the initial fine if it has had one of these types of citations within that same period.

As a result of these changes alone, many trade associations are taking a new, serious look at the safety and health area as one in which they need to provide education and advocacy for their members.

Injury and Prevention Programs

In addition, OSHA continues to move forward with establishing a standard that will require employers to institute injury and illness prevention programs. Dr. Michaels has announced that the intent is to “make employers set goals” in workplace safety. The proposed standard will set broad components for leadership and employee participation, planning, implementation, evaluation, and management review of safety rules and compliance.

In other words, this standard will require employers to do what they should already be doing. But after the standard is adopted, OSHA will be able to cite and fine them for not helping themselves.

Proposed Penalty Increases and Protected Class Expansion

At the legislative level, the Protecting America’s Workers Act was reintroduced in Congress in early January 2011. This rather sweeping legislation will significantly affect all employers and how they address safety issues. The Act proposes significantly higher penalties for all safety violation categories and significantly increases potential prison time for willful violations involving death. It also establishes a new category for a criminal willful violation when serious injuries result from the failure to comply. The definition proposed for serious bodily injury is very broad; under the workers’ compensation laws in many states, it would include just about any physical injury or occupational illness that has a psychiatric overlay.

In addition to the significant increase in civil and criminal penalties, the Act also increases whistleblower protection, expanding the protected class to include employees who report on-the-job injuries. It appears the theory is that an employee cannot be injured without being exposed to a hazard, so an employee reporting an on-the-job injury or illness is indirectly reporting a safety hazard. Thus, it could be argued that any action against such an employee was taken because he/she reported a safety or health hazard.

Proposed Abatement Timeline Changes

Another significant component of this proposed legislation, in addition to substantial victim’s rights language, would require employers to abate safety and health violations while contesting the alleged violation. So an employer, even while arguing that no safety or health violation existed, would be required to expend resources to correct situations a compliance officer has alleged are violations of an OSHA standard or the general duty clause, regardless of whether such violations actually exist.

Because alleged safety and health violations typically have short proposed abatement periods, most employers would have to file petitions to modify abatement dates in a separate action while challenging the substance of the citations issued. The abatement modification proceeding would go forward well in advance of any hearing on the merits of the subject citations.

This legislation could significantly increase the caseload of the Occupational Safety and Health Review Commission by forcing it to adjudicate not only the substance of the citations issued, but also the employer’s request to extend the abatement period to correct the alleged violations while its challenge to the underlying citation is proceeding. Likewise, by adding a separate series of pleadings, the employer’s legal costs could increase significantly.

The abatement period change in the Protecting America’s Workers Act is already moving forward in some states that have state approved OSHA programs. In April 2011, the governor of the state of Washington signed legislation that will put into effect an abatement requirement for employers who challenge citations issued by Washington OSHA. This legislation is to go into effect 90 days after the Washington state legislature adjourns, which was April 24, 2011. Washington OSHA will move immediately to promulgate regulations to implement this new legislation, which appears to mirror the abatement language in the Protecting America’s Workers Act.

Discrimination Concerns

In addition to the legislation moving forward, employers are noticing an increase in OSHA discrimination cases filed by employees. Employers must move very carefully when taking disciplinary action against employees who have brought a safety or health concern to the attention of management. While such action by an employee should not impede the employer from proceeding under its disciplinary action program for violation of any work rules, employers are cautioned to carefully document all unacceptable actions by the employee leading up to any disciplinary action.

Employers are also cautioned that in many area offices, OSHA currently considers the reporting of an on-the-job injury or illness as protected activity under Section 11(c) of the Occupational Safety and Health Act, which prevents discrimination against employees who report safety or health concerns to their employers. Note to all employers: be sure management personnel are very careful about what they say in electronic communications of any kind, including e-mails, text messages, and comments on social media such as Facebook, LinkedIn, and Twitter accounts. Sarcastic comments, as well as innocent discussions between management personnel concerning employees, can be brought to the attention of OSHA discrimination compliance officers. This may adversely affect a company in any OSHA discrimination proceeding, including its ability to reasonably negotiate a resolution prior to going to a formal trial.

Residential Fall Protection

One other step recently taken by Dr. Michaels from an administrative standpoint was to eliminate the interim standard for residential fall protection, which had been in place from shortly after the implementation of OSHA’s current fall protection standard. This interim fall protection policy was implemented to relieve employers engaged in residential construction from some of the requirements of the OSHA fall protection standard. Dr. Michaels determined that this policy was no longer necessary in light of advances in all forms of fall protection, and in December 2010 he announced that the interim policy for fall protection for residential construction would be withdrawn as of June 16, 2011. This is important for any employers who have ever used the interim policy as part of the implementation of their own fall protection program. Region VII of OSHA has already established a regional emphasis program to enforce this change

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Keeping Up with OSHA

As OSHA regulations and policies continue to evolve, it is critical that all companies keep up to date on what is required of them. One way to do this is to participate in the National Insulation Association’s Safety Roundtables, held at its Annual Convention each spring and Committee Days meeting each November. For more information, visit www.insulation.org.