OSHA Regulatory Update

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.

November 1, 2010

Legislation has been pending in Congress since April 2009 to significantly amend the Occupational Safety and Health Act of 1970. An Occupational Safety and Health Administration (OSHA) reform bill was introduced to the House of Representatives in the spring of 2009. A similar piece of legislation, the Protecting America’s Workers Act (PAWA), was introduced into the Senate by Edward M. (Ted) Kennedy in early August 2009.

Recently, the House of Representatives attached much of PAWA as an amendment to the Robert C. Byrd Miner Safety and Health Act of 2010, H.R. 5663. On July 21, 2010, H.R. 5663—with OSHA remedial legislation attached—was voted out of the House Education and Labor Committee on a party line vote of 30 to 17. While Republicans sought to scale back the bill through several amendments, all the amendments were defeated. It next goes to the full House for a vote, not yet scheduled as of the writing of this article.

Whistleblower Protection Extension

The amendments to H.R. 5663 will enhance whistleblower protections under OSHA considerably. Even without the proposed amendments in H.R. 5663, a significant increase has been observed in the number of complaints filed by employees terminated or laid off from their employment alleging that they have been discriminated against because they engaged in some protected activity under the law. With regard to OSHA discrimination or whistleblower protections, OSHA already reads the definition of “protected activity” broadly. The proposed amendments to whistleblower protection in the current law will greatly expand the “protected class” under OSHA.

Protected activity under the Occupational Safety and Health Act of 1970 is defined in Section 11(c), which states “no person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this act, or has testified or is about to testify in any such proceeding, or because of the exercise by such employee on behalf of himself or others of any right afforded by this act.” As one of the rights afforded to employees by OSHA is the right to be provided a safe place of employment, this phrase in Section 11(c)(1) is intended to cover employees who make safety complaints to their employers related to their working conditions.

Under the proposed amendment, this definition will be extended to include any employee who has been discharged or in any way discriminated against for reporting any injury, illness, or unsafe condition. This will extend whistleblower protection to any employee who files a workers’ compensation claim with the employer. Because OSHA now investigates any complaint of discrimination by an employee under the Act, it is conceivable that an employee who filed a workers’ compensation claim (reported an injury or illness) in 2009 and was terminated for tardiness or absenteeism in 2010 could complain to OSHA that he or she was terminated because he/she filed the workers’ compensation claim in 2009. This may seem a stretch, but this is one area in which OSHA currently finds against employers unless the conditions prove otherwise.

If OSHA responds as it currently does when receiving a whistleblower complaint, it will undertake a full investigation of the allegations raised by the employee immediately upon receipt. If the proposed language becomes law, employers will have to take a hard look at their current disciplinary procedures to be sure that they have sufficient documentation to protect themselves against frivolous claims.

The amendments also establish a separate adjudication system for whistleblower complaints and a new schedule of damages and settlement procedures. The amendment under the section for relief provides that, in addition to reinstatement without loss of position or seniority, the complaining employee would be entitled to receive “compensatory and consequential damages sufficient to make the complainant whole (including back pay, pre-judgment interest, and other damages); and expungement of all warnings, reprimands, or derogatory references that have been placed in paper or electronic records or databases of any type relating to the actions by the complainant that gave rise to the unfavorable personnel action….”

In addition to these damages, there is a provision for attorneys’ fees and costs: “if the secretary or an administrative law judge, review board, or court grants an order for relief?the secretary, administrative law judge, review board, or court, respectively, shall assess at the request of the employee against employer reasonable attorneys fees; and costs (including expert witness fees) reasonably incurred, as determined?in connection with bringing the complaint upon which the order was issued.” Thus, in addition to returning the employee to his/her prior position of employment with back pay, the employer would be liable for pre-judgment interest and any attorneys’ fees the employee might incur in bringing or pursuing the complaint against the employer.

Victim’s Rights Created

The OSHA amendment also contains, in Section 702, language amending Section 9 of the Occupational Safety and Health Act of 1970 creating a body of victim’s rights for any employee injured on the job whose injury results in an OSHA investigation, as well as for the immediate family members of any employee killed on the job whose death results in an OSHA investigation. These rights will permit victims to meet with the Secretary (area director) regarding the inspection or investigation prior to the Secretary’s decision to issue a citation or to take no action. They also will receive a copy of any citation or report issued as a result of any such inspection and be informed of any notice of contest or addition of parties to the proceedings after the citation is issued.

Victims will be provided notification of the date and time of any proceedings, service of pleadings and other relevant documents, and an explanation of the employer’s rights under the Occupational Safety and Health Act. They also will have the right to be notified of the time and date of any proceeding before the Review Commission and to receive copies of any pleadings or decisions relating to the proceeding before the Review Commission, as well as an opportunity to appear and make a statement before the Administrative Law Judge hearing the matter or before the full Review Commission hearing arguments on the case in accordance with whatever rules the Review Commission establishes to permit such a statement to be made. Finally, prior to entering into any agreement to withdraw or modify a citation issued as a result of an inspection, the victim or his/her representative will be provided an opportunity to appear and make a statement before the parties conducting settlement negotiations. To facilitate this language under the amendment, the Secretary shall designate at least one employee in each area office of OSHA to serve as a family liaison.

Abatement Period Changes

Section 703 of the amendment will affect Section 10 of the Occupational Safety and Health Act of 1970. It will be subject to interpretation (and probably litigation), but here is a look at how some of the language in the amendment might be applied to employers.

First, the amendment states that for each violation the Secretary designates as serious, willful, or repeated, the abatement period will begin to run upon receipt of the citation. The amendment also states that the filing of a notice of contest by the employer will not operate as a stay of the period of abatement. Currently, when a notice of contest is filed, the period to abate the citation is stayed or tolled pending the outcome of the notice of contest. Under the language of the amendment, the employer will have to begin abatement immediately upon receipt of the citation.

In other words, if the abatement period set out in the citation is “immediate,” the employer will have to correct the alleged problem even if the notice of contest is filed immediately upon receipt of the citation. This does not account for situations where citations have been incorrectly issued by compliance officers and later vacated either prior to or as a result of litigation. Under the amendment, even if the employer is right, he/she will have to expend resources to take what may prove to be unnecessary corrective action unless he/she spends other resources to use the one alternative the amendment offers: There is a provision in the amendment for the employer to file a motion with the Commission for a stay of the abatement period. The employer must demonstrate a substantial likelihood of success in the notice of contest, that the employer will suffer irreparable harm absent a stay of the abatement period, and that a stay will not adversely affect the health and safety of workers. In practical terms, these conditions likely will eliminate filing a notice of contest to stay abatement to negotiate a settlement of the citation unless the employer can demonstrate substantial likelihood of success in defending the citation if the notice of contest goes forward.

The Review Commission is instructed under the amendment to develop rules of procedure to conduct a hearing on such a motion for a stay on an expedited basis. The amendment provides that a hearing before the Administrative Law Judge on motion for such a stay shall occur not later than 15 days from the filing of the motion for a stay unless extended at the request of the employer. The decision on the motion for the stay must occur not later than 15 days following the hearing. There also is provision for objecting to a decision of the Administrative Law Judge on an employer’s motion for a stay by any party aggrieved by such a decision. The amendment does not address, however, whether the abatement dates are stayed until an employer’s motion for a stay has been adjudicated. At minimum, the motion for the stay could take 30 days from the time it is filed until a decision is issued, yet there is no indication what action, if any, the employer will have to take while its motion for a stay is pending on abatement dates that provide fewer than 30 days from the date the employer receives the citation to correct an alleged violation.

Additional language in the statute amends Section 17(d) of the Occupational Safety and Health Act of 1970. This amendment extends failure-to-abate violation penalties to apply to any citation in which the corrective action indicated has not been abated by the date stated in the citation unless a stay has been issued. Again, this creates an awkward situation for cases in which the compliance officer or area director issues a citation with an abatement period within 30 days of the date the employer receives the citation and the Administrative Law Judge hearing a motion for a stay takes the full 30 days to issue the stay. Failure-to-abate citations under this bill can be fined at up to $12,000 a day.

Civil Penalties

In addition to increasing civil penalties by approximately 72 percent on the high end, amendments to the penalty structure designate new categories for criminal penalties and criminal sentencing. Under the existing Occupational Safety and Health Act of 1970, an employer convicted of a willful OSHA violation that resulted in a fatality can, in addition to civil penalties, be imprisoned for up to 6 months. Under the proposed amendment to the Act, in a similar situation, an employer who “knowingly violates any standard, rule, or order promulgated under Section 6 of the Act or of any regulation prescribed under the Act (willful violation), and that violation caused or contributed to the death of any employee, shall, upon conviction, be punished by a fine in accordance with Title XVIII of the United States Code and/or by imprisonment for not more than 10 years.” The same amendment to the Occupational Safety and Health Act of 1970 provides that for a repeated offense the potential period of prison time is up to 20 years. Both amendments include the possibility of a substantial fine in addition to the prison time.

While potential prison sentences are spelled out for other possible actions by an employer, the amendment also creates a new criminal sanction for a willful violation that results in serious bodily harm to but does not cause the death of an employee. This penalty is a fine in accordance with Title XVIII of the United States Code or by imprisonment for up to 5 years or both. Serious bodily harm is defined as “bodily injury or illness that involves (A) a substantial risk of death; (B) protracted unconsciousness; (C) protracted and obvious physical disfigurement; or (D) protracted loss or impairment either temporary or permanent of the function of a bodily member, organ, or mental faculty.” Under this definition, a large number of workers’ compensation claimants would qualify as having suffered serious bodily harm, which could result in criminal prosecution if their employers were alleged to have committed a willful violation of the Occupational Safety and Health Act that resulted in that harm.

Timing of Amendments

The effective date of the amendments to the Occupational Safety and Health Act of 1970 is stated to be 90 days from enactment of the amendment. State plan states would have to enact the provisions of the amendment within 12 months of the enactment of the amendment by the federal government.

Field Operations Manual Amendments

Amendments to the Field Operations Manual are now in place. While waiting to see how the proposed legislation in H.R. 5663 is resolved, OSHA Administrator Dr. David Michaels has issued amendments to the Field Operations Manual announced on April 22, 2010, in a memorandum to regional administrators. Dr. Michaels indicated that these changes will become effective over the next several months. It is hard to gauge which of the changes are in effect now and which may only be in effect at some future point, but some of the procedural changes are currently being implemented.

One of the more significant changes is a prohibition concerning informal conference considerations. Dr. Michaels has restricted area directors’ ability to offer settlements of pending OSHA citations at an informal conference to a 30-percent penalty reduction. Area directors must now have approval of the regional administrator to offer a reduction greater than 30 percent. Area directors are authorized to offer an additional 20-percent reduction to employers with fewer than 250 employees who agree to retain the services of an outside safety and health consultant—the cost of which may be significantly higher than a 20-percent penalty reduction, however.

Dr. Michaels has made several other significant changes to the existing penalty structure in his memorandum and through changes to the Field Operations Manual. His announced intention is to increase the average penalty for a serious violation from the current reported amount of less than $1,000 to a goal amount between $3,000 and $4,000.

Amendments to the Field Operations Manual do not have to proceed under the Federal Administrative Procedures Act, nor do they have to work their way through Congress. They are in place the day the Administrator of OSHA announces them as such.

Severe Violator Enforcement Program

On June 18, 2010, OSHA unveiled its Severe Violator Enforcement Program (SVEP). The program was announced through OSHA Instruction CPL 02-00-149 and is designed to apply to employers who have demonstrated indifference to their OSHA obligations by committing willful, repeat, or failure-to-abate violations. If an employer is classified as a severe violator, OSHA instruction requires mandatory follow-up inspections following the issuance of citations, increased corporate awareness of OSHA enforcement, and corporate-wide agreements and federal court enforcement under Section 11(b) of the Occupational Safety and Health Act. Criteria limit the application of the instruction as it applies to willful, repeat, and failure-to-abate violators.

Conclusion

Readers can judge for themselves how this legislation will impact their businesses. While the amendments to the Field Operations Manual and the Severe Violator Enforcement Program are already partially or totally in effect, at the time this article was written there was still an opportunity to modify the pending legislation.

All members of the NIA are committed to providing a safe workplace for their employees. Because regulatory enforcement does not always equate with practical safety, however, employers who are providing their employees a safe place to work may find themselves spending thousands of dollars to fix things that are not really broken.