March/April 2015 The new year has
brought levels of uncertainty with the Occupational Safety and Health
Administration (Washington, D.C.) that we have not seen since President Obama
took office in 2009. Will OSHA continue its aggressive agenda of enhanced
enforcement, or will it change course due to political pressure from the
Republican-led Congress? While we can’t answer that, we can identify some
trends in OSHA enforcement actions we expect to continue this year.
Safety From Unspecified
Hazards
The
“general-duty clause” of the Occupational Safety and Health Act requires
employers to protect employees from hazards even when OSHA does not have a
regulation specific to that hazard. To find a general-duty-clause violation, OSHA
must confirm all four of the following: a condition or activity in the
workplace created a hazard; the employer or its industry recognized the hazard;
the hazard was likely to cause death or serious physical harm; and a feasible
means existed to eliminate or materially reduce the hazard.
In 2015, we expect OSHA to continue to use the
general-duty clause to issue citations related to workplace violence, arc
flash/arc blast, ergonomics, heat illness and hypothermia, infectious diseases,
fall protection, combustible dust, and permissible exposure levels below those
in existing OSHA regulations for hazardous materials. Although those hazards
are some of the most common OSHA targets under this clause, it can issue a
general-duty-clause citation on virtually any hazard not already regulated by a
specific OSHA health and safety standard. That’s one reason to conduct a
thorough job-hazard analysis and take prompt action to abate all hazardous
conditions at the worksite, even if no specific OSHA standard exists for that
hazard. Contract and Temporary
Employee Safety
Under
OSHA’s multi-employer worksite doctrine, it will issue citations not only to
employers who expose their own employees to a hazardous condition (the
“exposing employer”), but also to employers who created the hazardous condition
(“creating employer”), exposed the employee to the hazard, were responsible for
correcting the hazardous condition but failed to do so (“correcting employer”),
or had the ability to prevent, abate, or correct the hazardous condition
through the exercise of reasonable supervisory authority (“controlling
employer”). OSHA has been using this doctrine more frequently to issue
citations to numerous employers based on a single incident, and we expect this
will continue into 2015. This liability is significant and can result in
citations as well as criminal liability in the event of a fatality. Thus,
employers who work with subcontractors or on job sites with multiple employers
must ensure not only that its programs are adequate and its employees are
trained, but also that its subcontractors or fellow employers adhere to OSHA’s
standards. OSHA also has issued citations to host employers in general industry
who have engaged independent contractors to perform work activities at the host
employer’s worksite, relying upon the host employer’s status as the controlling
employer.
In 2014, OSHA implemented an initiative to
protect temporary employees. Under this initiative, OSHA inspectors must ask
whether a worksite they are inspecting has temporary employees and determine
whether those employees are exposed to hazardous conditions. They also will
inquire whether the training provided to temporary workers is in a language and
vocabulary they can understand. If OSHA determines that the temporary employees
did not receive adequate training or protections, it could issue citations to
both the temporary staffing agency and the host employer under the
multi-employer worksite doctrine. Employee Comprehension
of Training
Along
those lines, OSHA is focusing on many regulations that require the employer to
certify that the employee understood training or was qualified to perform
certain work. If the agency can establish that the training was not provided—or
that the employees could not understand it because the training is in writing
and the employee is illiterate or the training was conducted verbally in a
language the employee could not understand—the agency may claim that the
certifications are false, resulting in citations or potential criminal liability
for the individual who signed the certification.
Be Prepared
OSHA
inspections also are likely to check whether an employer is following
recordkeeping and injury and illness reporting regulations that went into
effect Jan. 1. Because OSHA must inspect every report of death or injury, the
reporting change is expected to result in 10,000 more inspections each year.
Protect your company and your employees by training them about their rights
during the OSHA inspection process. Only by taking action now can you ensure
you’re prepared for what’s to come.
Mark A. Lies II is a
partner and Kerry M. Mohan is an associate at Seyfarth Shaw (Chicago). Reach
Lies at 312/460-5877 or mlies@seyfarth.com and Mohan at 312/ 460-5659 or
kmohan@seyfarth.com.