Don’t Report Yet! OSHA Holds Off on Electronic Posting RequirementsLast July, we wrote about the Occupational Safety and Health Administration’s new electronic reporting requirements, which will require certain employers (those with 250 or more employees, or those with 20-249 employees in specific industries) to electronically submit injury and illness data. When OSHA announced the new reporting requirements, it gave a deadline of July 1, 2017, for employers to electronically submit their information in a Form 300A. Last week, OSHA announced that it has indefinitely postponed that deadline and conveyed that it is not accepting electronic submissions at this time.

At this point, OSHA and the new presidential administration have not hinted that they plan to make any substantive changes to employer obligations to complete and retain injury and illness records. We have seen, however, a significant change in the course of employer regulations across the board since the Trump Administration took office, so the delay in the implementation of the electronic reporting requirements could suggest that substantive changes are in the works.

As we discussed in a March blog post, President Trump has already repealed the Fair Play and Safe Workplaces regulations finalized last August, which required reporting of a host of violations under labor laws including OSHA. Additionally, OSHA has not published any information about enforcement fines issued since Inauguration Day, whereas under the Obama administration, OSHA issued more than 400 news releases annually about fines and other enforcement actions. This change marks a dramatic shift from the prior administration’s attitude that employers should be admonished to clean up any issues lest they face a hefty fine or other penalty. The postponement of the electronic reporting requirement appears to be yet another development in that shift.

Stay tuned for further developments.

workplace hazardWhen does an incidence of workplace violence rise to the level of a federal case? The Occupational Safety and Health Administration (OSHA) has updated its guidance on just that issue. The OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm to employees. The succinctly titled Directive Number CPL 02-01-058, “Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence” —which became effective on January 10, 2017 — addresses when hazards created by people (i.e., violent coworker, customer, etc.) violate the General Duty Clause.

The Directive provides general enforcement guidance as to when OSHA officials should make a response to, and/or cite an employer for, a complaint or fatality arising out of an incident of workplace violence. It defines “workplace violence” broadly as “violent acts (including physical assaults and threats of assaults) directed towards persons at work or on duty.” The stated purpose of the new Directive is to (1) clarify the different healthcare settings in which workplace violence incidents are reasonably foreseeable; (2) recognize corrections and taxi driving as high-risk industries; (3) identify more resources for inspectors; (4) explain the review process for settlement agreements; and (5) update guidance on hazard alert letters.

Why the Update?

The updated Directive appears to be based, in part, on data from the Bureau of Labor Statistics (BLS) about the 15,000 to 25,000 incidents of workplace violence reported each year. First, BLS says that two- thirds of the reported incidents resulting in missed work occurred in healthcare settings.  Also, BLS reported that late-night retail workers, taxi drivers, and correctional officers have reported high numbers of incidents of workplace violence.

What Does the Directive Say?

The Directive generally sets forth the steps OSHA is to follow to determine whether to initiate an inspection of a complaint or incident related to workplace violence. It also provides the basis for a citation under the General Duty Clause, the resources available to OSHA in conducting inspections and developing citations, and how Area Offices may assist employers in addressing workplace violence.

In determining whether to initiate an inspection, the Directive sets forth a list of known risk factors, none of which would individually trigger an inspection. OSHA is to consider whether the employer’s work entails:

  • contact with the public;
  • the exchange of money;
  • the delivery of passengers, goods, or services;
  • a mobile workplace, such as a taxicab;
  • employment in healthcare, social service, or criminal justice;
  • working alone or in small numbers;
  • working late at night or during early morning hours;
  • working in high-crime areas;
  • guarding valuable property or possessions; or
  • working in community-based settings, such as drug rehabilitation centers and group homes.

Assuming your workplace involves some of those factors, when does a workplace violence incident constitute a violation of the General Duty Clause?  The Directive provides the following elements of a violation: (1) the employer’s failure to keep its workplace free of a foreseeable workplace violence hazard; (2) the hazard was recognized explicitly or because it occurred in a recognized high-risk industry; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) there was a feasible, useful means of correcting the hazard.

Guidance on Assessing Your Risk

The updated Directive advises employers to assess their worksites to identify methods for reducing incidences of workplace violence, and counsels employers to develop and implement a well-written workplace violence prevention program. It goes on to suggest that employers implement engineering and administrative controls, and train employees regarding reducing incidences of workplace violence.

Appendix A to the Directive provides a list of potential methods for reducing workplace violence that employers should consider. Among other methods, the appendix suggests provisions that a comprehensive workplace violence prevention program should include, like a policy statement, a hazard assessment and a security analysis. The appendix also provides examples of engineering controls, including assessing plans for new construction to eliminate or reduce security risks; installing and maintaining alarm systems and other security devices, including metal detectors and 24-hour close-circuit recording equipment; limiting access to the worksite; and installing bright, effective lighting. Examples of administrative controls include conducting a workplace hazard analysis; training employees as to workplace violence; establishing liaisons with local police and state prosecutors; and requiring employees to report all assaults or threats to a supervisor or manager.

You should consider OSHA’s guidance in developing and implementing a workplace violence prevention program. Make sure your employees know that they do not have to tolerate potentially violent behavior, and they need to report any such behavior. However, when you get to the suggested engineering and administrative controls, be sure to balance them against other laws governing your workplace, including state, local, and federal privacy laws and safety and building codes and standards.

 

Discarded blacklist

President Obama and his EO’s

Remember the Blacklisting Order that required federal contractors to provide a rap sheet with a proposal? No? Well, President Obama issued 275 Executive Orders during his two terms on various subject matters, some of which were fairly controversial, the Blacklisting Order included. Back in 2014, he issued several high-profile executive orders focused on employment issues in particular. For example, executive orders were issued for federal contractors regarding minimum wage, affirmative action, disclosure of compensation information, and similar issues. So what happens to those EOs now? Although we can’t predict the future, we can tell you that the Blacklisting Order is gone for now.

Some Background: Fair Pay and Safe Workplaces Executive Order 13673

Executive Order 13673 (issued on July 31, 2014) was called the “Fair Pay and Safe Workplaces” order, and it required federal contractors and subcontractors to report any “administrative merits determination arbitral award or decision, or civil judgment” against them in the preceding three years that related to potential violations under the FLSA, NLRA, OSHA, FMLA, and other anti-discrimination laws. It was known as the “blacklisting” order because it required the federal contracting officer to consider such violations when awarding or extending government contracts. The order also barred contractors from imposing predispute arbitration agreements on their employees.

Successful Challenge to the Order: The FAR Rule and the Injunction

On August 24, 2016, the Federal Acquisition Regulatory Council and the Department of Labor published a final rule implementing the Fair Pay and Safe Workplaces Executive Order. The final rule required federal prime contractors and subcontractors, including federal construction contractors with contracts over $500,000, to disclose to the government labor violations occurring within an expanding lookback period. Among the labor laws listed were the Davis-Bacon Act, the Service Contract Act, the FLSA, OSHA, the Migrant and Seasonal Agricultural Worker Protection Act, and the NLRA.  The final rule, which was more than 500 pages, contained an effective date of October 25, 2016.

On October 7, 2016, the Associated Builders and Contractors (ABC) filed a lawsuit in the Eastern District of Texas to have the order and final rule declared unlawful and set aside. The ABC complaint stated that “[t]he Executive Order, FAR Rule, and DOL Guidance are unprecedented in their exercise of authority over matters previously controlled by Congress.” ABC further sought to have the regulation immediately enjoined. On October 24, 2016, the Texas federal judge granted ABC’s motion for a preliminary injunction against the reporting obligations in the new rule. The court also enjoined the restriction on arbitration agreements.

Enter the CRA and President Trump

Using a law passed in 1996 called the Congressional Review Act (CRA), in 2017 Congress immediately began reviewing regulations issued in the final months of the Obama administration. The CRA gives Congress an expedited process to revoke administrative regulations issued by the executive branch which it believes infringed when believed the regulations infringed upon the role of Congress. Although used only a few times since its passage, Congress has already invoked the CRA seven times this year. All of these actions have been signed into law by President Trump.

This week, on March 27, President Trump signed CRA legislation to repeal the Fair Play and Safe Workplaces regulations issued last August. Under the CRA, the House passed a resolution on February 2 to revoke the rule, and the Senate followed suit on March 6. With President Trump’s signature this week, the blacklisting rule finally and officially is blacklisted. In signing the CRA bill, the Trump administration commented that the blacklisting rule had been seen as one of the most significant threats to growing American businesses and hiring more American workers. We suspect that there will be more blacklisting of President Obama-era regulations in the days to come.