Category Archives: OSHA

OSHA Violations Lead to Criminal Indictments and $1,475,000.00 Proposed Penalties

Contributed by Patrick Sanders, April 14, 2017

An OSHA investigation concluded on April 11, 2017 found that Atlantic Drain Service Company, Inc. failed to train its employees to recognize and avoid cave-in and collapse hazards, and failed to provide basic safeguards against trench collapse.  Two Atlantic Drain Company employees died on October 21, 2016 in Boston when a trench collapsed which ruptured an adjacent fire hydrant supply line filling the 12 foot deep trench with water in a matter of seconds.

In announcing $1,475,813 in proposed penalties for 18 willful, repeat, serious and other violations, OSHA determined that both Atlantic Drain and its owner (who oversaw the work the day of the fatalities):

  • Failed to install a support system to fully protect employees in the 12’ deep trench from cave-in and an adjacent fire hydrant supply line from collapsing;
  • Failed to remove employees from the hazardous conditions in the trench;
  • Failed to train the workers on how to identify and address hazards associated with trenching and excavation;
  • Failed to provide an escape ladder at all times; and
  • Failed to provide support structures in and next to the trench for overhead hazards.

You can find the full citations here.

OSHA, the US Solicitor, the Inspector General, Boston Police Department Homicide Unit and Suffolk County District Attorney’s Office all coordinated to investigate and obtain indictments of both Atlantic Drain and its owner on two counts each of manslaughter. More information can be read here on the Suffolk County District Attorney’s office website.

“The deaths of these two men could have and should have been prevented” said Galen Blanton, OSHA’s New England Regional Administrator. He also noted that Atlantic Drain had previously been cited by OSHA in 2007 and 2012 for similar trenching violations and knew what safeguards were needed to protect its employees, but apparently chose to ignore its responsibility.

As we start the spring construction season, this case is an important reminder to employers that all employees need to be fully trained on all hazards associated with the work they are preforming, and that workplace supervision needs to be trained and they also need to be supervised to ensure consistent enforcement of all workplace safety standards.

Contractors should remember the walls of an unprotected trench can collapse suddenly and with great force trapping and engulfing workers before they have a chance to react or escape. Contractors must provide effective protection against cave in hazards by properly shoring the trench walls, sloping the soil, or by deploying appropriate protective trench box technology.

Not providing a means of escape (ladders) was an aggravating factor, especially when high pressure firefighting water supply lines were known to be embedded in the immediate vicinity of the trench.

The case should also remind all employers, especially those organizations that have a record of serious violations, that OSHA will rigorously enforce the employee training, workplace safety information, and periodic retraining provisions of all safety regulations with repeat, willful and in extreme cases, criminal violations, should subsequent violations be documented by OSHA.

Senate Approves Measure to Kill OSHA Statute of Limitations Change for Recordkeeping Violations

Contributed by Jonathon Hoag, March 24, 2017

On March 22, 2017, the U.S. Senate passed a measure to revoke OSHA’s modification to the six-month statute of limitations for recordkeeping violations. Under the Obama Administration, OSHA issued a new rule to extend the statute of limitations for recordkeeping violations from six months to five years. The changed recordkeeping regulation went into effect in January 2017, but a bill is now on its way to President Trump who is expected to sign the bill and revoke the new regulation.

Employer

Employer sitting at desk

OSHA issued the new recordkeeping rule on December 16, 2016 in response to an adverse decision by the U.S. Court of Appeals for the D.C. Circuit.  AKM LLC d/b/a/ Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012). In Volks, the court unanimously held that recordkeeping violations are subject to OSHA’s standard six month statute of limitation. OSHA disagreed and argued recordkeeping violations should be subject to a five year statute of limitations inasmuch as employers are required to maintain injury logs for five years. However, instead of appealing the decision in Volk, OSHA changed the rule to make recordkeeping violations subject to a 5 year statute of limitations.

Employers were rightfully concerned about OSHA’s new rule given OSHA’s focus on recordkeeping violations and the inherent difficulty in addressing the context of an entry on an injury log up to five years old. With recordkeeping being such an important requirement that employers must get right, it at least appears that with the new law employers will be relieved from overreaching exposure to penalties for OSHA recordkeeping violations.

INJUNCTION AGAINST OSHA DENIED: OSHA TO BEGIN ENFORCING ITS POST-ACCIDENT DRUG TESTING AND SAFETY INCENTIVE RULES TOMORROW (DECEMBER 1, 2016)

Contributed by Jonathon Hoag, November 30, 2016

63527433 - december 1. calendar on white background. 3d illustration.OSHA previously delayed enforcement of its controversial post-accident drug testing and safety incentive rules until December 1, 2016. OSHA agreed to the delay at the request of a federal Judge who was considering a lawsuit requesting injunctive relief to prevent the new rules from going into effect. This week, the Judge issued a decision denying the request for injunctive relief. In light of the decision, OSHA announced it intends to begin enforcement of the new rules on December 1, 2016.

As a reminder, this injunction was filed because during the rulemaking process, OSHA indicated that blanket post-accident drug testing programs or safety incentive programs that discourage reporting of injuries may constitute a violation and subject employers to penalties. Industry groups filed suit asserting that OSHA overstepped its authority and did not follow correct rulemaking procedures. The industry groups sought a nation-wide injunction, which would have relieved all employers from the new rules.

Importantly, in the ruling denying the request for an injunction, the Judge determined that post-accident drug testing and safety incentive programs are not prevented under OSHA’s new rules; OSHA is merely placing limitations on practices that might discourage the reporting of accidents. Employers should ensure that policies and practices concerning drug testing and safety incentives have been reviewed and updated in light of OSHA’s new rules.

ACA Whistleblower Complaint Procedures

Contributed by Kelly Haab-Tallitsch, November 3, 2016

On October 11, 2016, the Occupational Safety and Health Administration (OSHA) issued the final rule creating procedures for handling whistleblower complaints under the Affordable Care Act (ACA).  The ACA prohibits employers from retaliating against employees who report alleged violations of the act’s health coverage reforms or who receives a premium subsidy or tax credit for purchasing individual health coverage through a state or federal exchange. A covered employer can receive a penalty if an employee receives a tax-credit or premium subsidy for coverage through an exchange. The final rule addresses the concern that the relationship between the employee’s receipt of a premium tax credit and the potential penalty imposed on an employer could create an incentive for an employer to retaliate against an employee.

whistleTo demonstrate unlawful retaliation under the ACA, an employee need only show that the protected activity was a contributing factor to an adverse employment decision—rather than the “but for” cause. An employer will then have to present “clear and convincing evidence” that it would have taken the same action even if the employee had not engaged in the protected activity.

Substantially similar to the interim rule on ACA whistleblower claims published in 2013, the final rule mirrors many of the provisions related to whistleblower protections under other statutes that OSHA enforces and includes procedures and time frames for employers and employees to appeal an OSHA decision.

Complaint Procedures

An employee must file a complaint within 180 days of the alleged retaliation. The complaint can be oral or written, made by telephone, in person or electronic means, and may be made in any language if the employee can’t file in English. Anyone can file a complaint on behalf of an individual, provided that individual agrees.

Once a complaint is submitted, OSHA must provide written notice to the employer, provide the employer and employee an opportunity to submit a response and meet with the investigator to present statements from witnesses, conduct an investigation, and issue notification of its findings. If OSHA finds reasonable cause to believe that retaliation has occurred, a preliminary order will be issued, which can include job reinstatement, lost wages, restoration of benefits, special damages (i.e. emotional distress) and attorneys’ fees and costs.

Either party may then request a hearing by a Department of Labor administrative law judge (ALJ) and an ALJ’s decision may be appealed to the department’s administrative review board.

Employer Action Steps

To reduce the risk of an ACA whistleblower claim, applicable large employers (as defined by the ACA) should:

  1. Ensure compliance obligations are adequately addressed;
  2. Identify ethics and legal compliance as a business priority;
  3. Implement and distribute a code of ethics that makes a commitment to compliance explicit;
  4. Include a well-publicized and effective internal complaint procedure; and
  5. Train supervisory staff! Make sure supervisors know what constitutes protected activity, retaliation, etc.

By taking the above steps, an employer can minimize chances employees will raise ACA whistleblowing claims and maximize chances that any such claims are raised and resolved internally.

UPDATE: OSHA DELAYS ENFORCEMENT OF ITS CONTROVERSIAL POST-ACCIDENT DRUG TESTING RULE UNTIL DECEMBER 1, 2016

Contributed by Jonathan Hoag, October 18, 2016

As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016.  Now, with the November 1, 2016 deadline approaching, OSHA has extended its stay on enforcing the post-drug testing rule until December 1, 2016.

OSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues presented in the lawsuit. The legal briefing was completed in September 2016.  While the Judge was reviewing the case to determine if OSHA should be enjoined from enforcing its rule, OSHA claimed that the plaintiffs were only seeking injunctive relief on behalf of the parties to the lawsuit and not on a national basis.

On October 14, 2016, the Judge determined that the parties should further brief the issue as to whether the injunction sought was only on behalf of the parties to the lawsuit or if it would apply nationwide. The Judge requested that OSHA delay enforcement of the rule until December 1, 2016 to allow time for a decision on the pending lawsuit. Today, OSHA informed the court that it has agreed to a further delay and it has advised all regions of the decision to delay enforcement until December 1, 2016. The court intends to make a determination on the request for an injunction prior to the December 1, 2016 deadline. If an injunction is entered, the court will also decide if it prohibits enforcement nationwide or only with respect to the parties.

Employers should continue with preparations to comply with OSHA’s new rule. For more in depth coverage, join us for a webinar on this topic on October 19, 2016 from 10:30 a.m. – 12:00 p.m. or for an in-person seminar in Effingham, Illinois on October 20, 2016.

 

OSHA MAY POSTPONE ENFORCEMENT OF ITS CONTROVERSIAL POST-ACCIDENT DRUG TESTING RULE FOR A SECOND TIME

Contributed by Jonathan Hoag, October 17, 2016

As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016.  Now, with the November 1, 2016 deadline approaching, OSHA may extend its stay on enforcing the post-drug testing rule until December 1, 2016.

47506356 - alarm clock - deadlineOSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues presented in the lawsuit. The legal briefing was completed in September 2016.  While the Judge was reviewing the case to determine if OSHA should be enjoined from enforcing its rule, OSHA claimed that the plaintiffs were only seeking injunctive relief on behalf of the parties to the lawsuit and not on a national basis.

On October 14, 2016, the Judge determined that the parties should further brief the issue as to whether the injunction sought was only on behalf of the parties to the lawsuit or if it would apply nationwide. The Judge will only agree to review the issue further if OSHA will agree to postpone enforcement until December 1, 2016. OSHA must decide by October 18, 2016 if it will agree to delay enforcement. It is likely OSHA will agree to delay enforcement. However, it is unclear whether the court will enter an injunction to prevent enforcement of the rule, and if an injunction is entered whether it will apply nationwide or only to the parties that filed the lawsuit.

Unfortunately, it is doubtful employers will receive clarity on this issue until close to the deadline when enforcement is to begin – no matter if that deadline is November 1, 2016 or December 1, 2016. As such, employers should continue with preparations to comply with OSHA’s new rule. For more in depth coverage, join us for a webinar on this topic on October 19, 2016 from 10:30 a.m. – 12:00 p.m. Or click here to register for an in-person seminar in Effingham, Illinois on October 20, 2016.

OSHA to Delay Enforcement of Electronic Recordkeeping Rule Until November 1, 2016

Contributed by Jonathon Hoag, July 14, 16

This is an update to our July 6, 2016 post regarding OSHA’s plan to enforce new rules concerning post-accident drug and alcohol testing.  In response to a lawsuit filed to block the August 10th implementation of OSHA’s new electronic recordkeeping rule (including the limits on post-accident drug and alcohol testing), OSHA announced yesterday that it will delay enforcement until November 1, 2016. There is no indication that OSHA will back away from its new stance on post-accident drug and alcohol testing, but enforcement will not begin until November 1, 2016.