OSHA to Hold Second Public Meeting to Discuss Voluntary Protection Programs

As generally expected under a Republican administration, OSHA appears more focused on compliance and a collaborative working relationship with businesses. As part of this strategy, OSHA recently announced it will hold its second public meeting on August 28, 2017 to solicit suggestions for strengthening the Voluntary Protection Programs (VVP).

The agenda will target three broad categories which include 1) overall VVP process and flow; 2) corporate/long-term participant involvement; and 3) special government employee activities. The meeting will be held in the Great Hall B of the Ernest N. Morial Convention Center in New Orleans from 1 to 4 p.m. A link to register follows https://reg.abcsignup.com/reg/event_page.aspx?ek=0019-0016-b6d21cbf3980471ea6e0bf2b391faacb

However, it is also worth noting that the numbers do not indicate any material slip in enforcement. OSHA inspections have remained relatively constant during the first six months of the Trump administration, as approximately 17,500 inspections occurred from January 20 to July 20, 2017, compared to approximately 16,500 inspections that happened during the same period in 2016. It will be interesting to see if the rate of inspections continues in the coming years and to watch for any significant policy shifts such as in the area of bathroom facilities for transgender workers, among others.

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Timely OSHA Issues Discussed at the American Bar Association – OSHA Committee Meeting

Close-up of Hands holding pens and making notes at the conferenceThe ABA – OSHA Committee held its 2017 Midwinter Meeting in Jupiter Florida from March 7 – 10. It was well attended by OSHA practitioners across the country including many prominent government attorneys including: Susan Harthill, Deputy Solicitor for National Operations; Thomas Galassi, Director, Directorate of Enforcement Programs, OSHA; the Honorable Covette Rooney, Chief Judge, U.S. Occupational Safety and Health Review Commission; and Heather MacDougall, Acting Chairperson, Occupational Safety and Health Review Commission.

Many in the audience wondered how the new Administration might affect OSHA in the next four years. As expected, the typical response from the government side was business as usual with one government attorney commenting, “smaller but mightier.”

The various panels throughout the conference discussed timely OSHA issues (many of which have been covered in prior blogs here) including the new electronic recordkeeping rules, annual indexing of penalties, developments in process safety management, criminal prosecutions following workplace fatalities, targeted enforcement initiatives and anti-retaliation issues.

During one panel which discussed legal issues arising from OSHA inspections, there was a particularly lively exchange between management attorneys and OSHA representatives on two specific issues: 1) the right of non-employee, union representatives in a non-union worksite to participate in a walk-around inspection and 2) the right of hourly employees to have a management representative participate in an OSHA interview. (more…)

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OSHA Inspections and Search Warrants – What’s the Rule vs. Best Practice?

inspector with clipboard wearing hard hatCongress granted the Secretary of Labor the authority to enter places of employment to conduct safety and health inspections. The OSH Act provides that such inspections must take place at reasonable times, within reasonable limits and in a reasonable manner and that they may include inspection of relevant conditions, structures and other equipment. For a general description of the inspection process, OSHA has published a Fact Sheet which is available here.

As the Fact Sheet indicates, it is also well-established that an employer may generally request a search warrant before allowing an OSHA inspector into the worksite. There are limited exceptions to the warrant requirement which include 1) consent by the employer 2) authorized third party consent such as consent provided by a general contractor at the worksite 3) emergency situations if there is a compelling need for official action and no time to secure a warrant and 4) if the conditions are in plain view of the public or inspectors while they are lawfully on the employer’s premises. (more…)

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The Rise of OSHA Whistle-Blower Cases

construction worker walking alone in vest and hardhatIn the last blog, we took a look data showing a decrease in OSHA workplace safety and health inspections in 2016.  Although this may be true for safety and health inspections, it is certainly not for whistle-blower investigations which continue to rise.  Some may not be aware that OSHA enforces and investigates claims under 22 different federal whistleblowing laws including, among others, Section 11(c) of the OSH Act, the Safe Drinking Water Act, Sarbanes-Oxley, the Surface Transportation Assistance Act and the Consumer Financial Protection Act of 2010.

OSHA continues to be very active in whistle-blowing prosecution including anti-retaliation cases.  Some of these activities include the following press releases:

  • January 14, 2017 – OSHA issues recommended practices to promote workplace anti-retaliation programs
  • December 14, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints from workers in the automotive industry
  • October 12, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Affordable Care Act
  • September 16, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Seaman’s Protection Act
  • September 15, 2016 – OSHA issues new guidance in settlement approval in whistleblower cases
  • August 16, 2016 – OSHA pilots new, expedited whistleblower review process
  • April 18, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Food Safety Modernization Act

OSHA’s website also shows aggressive prosecution of retaliation cases affecting many different industries.

(more…)

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A Quick Look Back at OSHA in 2016 by the Numbers

construction area inspectionThere are lot of questions about how the Trump administration will affect OSHA in the next four years including who will lead the agency.  The President has already implemented a federal hiring freeze although there are some exceptions built into the mandate. However, it is probably a safe bet to assume we probably will not see an increase in OSHA enforcement and most likely a shift from enforcement to compliance assistance as federal budgets will likely shrink. (more…)

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