Workplace Safety and Health Group Authors Article on Law 360

Date: Sep 01, 2016

OSHA's Insufficient Approach To Improving Workplace Safety
Law360, New York (August 31, 2016, 1:39 PM ET) -- 
Since the beginning of the current administration, the Occupational Safety and Health Administration has expanded on a more punitive, enforcement-based approach in carrying out its mandate. In so doing, the administration has largely abandoned the proactive initiatives instituted by the Bush administration, which were meant to help employers improve workplace safety and compliance with OSHA regulations.

Now, under the current administration, OSHA has promulgated new regulations and interpretations to expand its enforcement authority, enhanced targeted enforcement programs, and increased its use of media, news releases and public statements to publicize alleged OSHA violations. Whether OSHA has the statutory authority to pursue these initiatives is apparently not a concern to the current management.

For example, OSHA’s recently adopted Improve Tracking of Workplace Injuries and Illnesses regulation would give OSHA the authority to enforce its expansive view of the injury and illness record-keeping and anti-retaliation provisions contained in Sections 8 and 11(c), respectively, of the Occupational Safety and Health Act by creating an entirely new enforcement mechanism based on the issuance of OSHA citations. Section 11(c) authorizes OSHA to investigate an employee’s complaint that an employer has engaged in unlawful retaliatory or discriminatory conduct and provides remedies for the alleged retaliatory or discriminatory conduct, which are limited to damages and certain injunctive relief, such as reinstatement, through a civil action in a federal district court.

As interpreted by OSHA, the final improve tracking rule allows OSHA to issue citations against an employer for: (1) alleged retaliatory or discriminatory conduct in the absence of any employee complaints, and (2) implementing policies and procedures that could reasonably discourage an employee from reporting a workplace injury or illness, regardless of whether an employee has complained, regardless of whether there was any employer retaliation or discrimination, regardless of whether an employee declined to report an injury or illness, and regardless of whether any employee experienced a reportable injury or illness. These new provisions are scheduled to go into effect on Nov. 1, 2016.

OSHA has similarly expanded its enforcement authority under the process safety management (PSM) standard through three material reinterpretations of the standard without rulemaking: (1) a substantial narrowing of the “retail exemption,” which exempts retail facilities from having to comply with the PSM standard; (2) declaring that, in determining whether a threshold quantity of a highly hazardous chemical (HHC) listed in the standard without a threshold concentration is present in a process, the employer must include the entire quantity of the HHC present anywhere in the process at a concentration of at least one percent (the 1 percent rule); and (3) redefining recognized and generally accepted good engineering practices (RAGAGEP).

Through these reinterpretations, OSHA has greatly expanded the number of organizations required to comply with the PSM standard, and the burden of complying with the standard. OSHA’s reinterpretations of the PSM standard were challenged in litigation by a number of industry groups. OSHA settled the dispute over RAGAGEP in American Petroleum Institute v. United States Department of Labor, No. 15-1253 and the dispute over the one percent rule in July of 2016. See also, American Chemistry Council v. OSHA, No. 15-01252 (D.C. Cir.). Under the settlement agreement (see July 18, 2016, memo), OSHA agreed to extend the compliance deadline for the 1 percent rule and agreed that two chemicals (hydrogen bromide and alkylaluminum) would not be governed by the 1 percent rule. OSHA’s memorandum also states that it will not enforce the one percent concentration threshold for chemical operations not previously covered by the PSM standard through March 31, 2017.

Additionally, OSHA stated that, through March 31, 2018, it will not cite an employer newly covered by the PSM standard under the 1 percent rule provided the employer is making good faith efforts to come into compliance with the PSM standard by March 31, 2018, and does not experience a fatality or catastrophic event.

In addition to expanding its authority under the final recordkeeping rule and PSM standard, OSHA has also enhanced a number of enforcement programs, including the severe violators (SVEP) targeted program. Under the SVEP program, OSHA targets employers for inspection and publishes news releases identifying the employers that have been issued citations and proposed penalties of more than $40,000 as a result of the targeted inspection, even if the citations are being contested.

The agency’s published list of SVEP violators increased by 23 percent from 2013 to 2014 and continues to grow each year that the program is in place. OSHA has also begun to publish a quarterly list of inspections and follow-ups on its enforcement webpage. Believing the SVEP program to be successful, the agency has even established a whistleblower-severe violator pilot program in the Kansas City, Missouri, region that will target employers in Kansas, Missouri and Nebraska, who the administration believes “routinely ignore federal workplace safety and health regulations,” engage in practices that discourage reporting of work-related injuries (i.e., rate-based incentive programs), or retaliate against employees for protected activity.

The results of these targeted inspections will be published in a manner similar to notices of citations and penalties issued under the SVEP program. In addition, the U.S. Department of Labor issued an enforcement memorandum to OSHA instructing it as to the types of evidence that OSHA should seek during inspections in order to expand an inspection to include franchisees and subcontractors.

OSHA has further amplified its criminal enforcement focus by entering into a joint worker endangerment initiative with the U.S. Department of Justice. Under the initiative, OSHA has increased the number of referrals it makes to the DOJ for criminal prosecution, including general prosecutions for violations of OSHA regulations, which can constitute a misdemeanor offense subject to $10,000 penalty or six months imprisonment. In investigating OSHA referrals, the DOJ has often paired alleged violations of OSHA regulations with other criminal offenses, such as false statements, obstruction of justice, environmental crimes, conspiracy or endangerment crimes.

When paired, these offenses can add up to prison sentences of 5 to 20 years and significant criminal fines. In one recent case, Behr Iron & Steel Inc., the company was sentenced to five years of probation and ordered to pay $350,000 in restitution to an employee’s estate following criminal proceedings for willful violations of an OSHA standard that resulted in the death of an employee. Behr Iron & Steel was also fined $520,000 in related administrative penalties.

Although OSHA has always focused on enforcement, OSHA’s development of purely punitive regulations (i.e., regulations focused on punishing employers for policies and procedures, rather than enhancing workplace safety) and intensified focus on enforcement have diverted significant resources from the development of rules that will improve workplace safety as well as programs aimed at improving regulatory compliance through employer training, education and outreach. For example, by continuing to focus on record keeping in its rulemaking initiatives, OSHA has ignored other longstanding workplace safety issues, such as slips, trips and falls, which could be addressed by proactive OSHA initiatives. Additionally, some of OSHA’s regulations, policies and heavy-handed enforcement practices, actively deter open and transparent communication between OSHA and employers, by discouraging employers from consulting or collaborating with the agency.

In fact, as a result of OSHA’s punitive response to alleged workplace safety violations and workplace accidents, many employers choose not to consult with OSHA at all, even when they are reasonably confused about regulatory compliance, because they fear OSHA’s response. Finally, OSHA’s use of media, press releases and public statements to shame employers following a compliance inspection has resulted in many employers, who are involved in OSHA inspections and enforcement proceedings, being publicly viewed as violators of OSHA regulations, such that they face loss of business, poor public perception and reduced employee morale; all before OSHA’s allegations have been proven through a judicial process. When citations are contested, employers often prevail.

Public shaming and punitive enforcement have never been effective tools in improving workplace safety and health. The use of purely punitive measures to enforce OSHA rules eliminates the possibility of engaging in an active and open dialogue with employers on proactive ways OSHA can improve workplace safety, which is, after all, OSHA’s purpose. The current administration lacks context and understanding of how this punitive approach creates such a negative impact on employers’ views of the agency, thereby making the rules and the administration’s enforcement approach, at best ineffective and at worst a significant waste of time, money and resources for both employers and the agency.

Given the fact that workplace injury and illness data show that safety and health have stagnated in the last few years, it is clear the administration and workplace safety would be better served by a regulatory and enforcement approach that seeks to help employers obtain an understanding of and comply with regulatory requirements, as well as improve their overall workplace safety and health programs. Enforcement has its place, but, unfortunately, the cooperative approach Congress envisioned when the act was adopted has been rejected by this administration.

—By David G. Sarvadi, Lawrence P. Halprin, and Manesh K. Rath, Keller and Heckman LLP

David Sarvadi, Lawrence Halprin and Manesh Rath are partners in Keller and Heckman's Washington, D.C., office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.