OSHA Forecast: Developments to Watch in 2016 and Beyond

© 2016 Epstein Becker & Green, P.C. | All Rights Reserved. ebglaw.com
OSHA Forecast: Developments to
Watch in 2016 and Beyond
January 27, 2016

© 2016 Epstein Becker & Green, P.C. | All Rights Reserved. | ebglaw.com
Presented by
Valerie Butera
Member, Labor and Employment Practice
Washington, D.C. Office
vbutera@ebglaw.com
202-861-5325
2

Broader Range of Industries
Targeted for Enforcement

The Enforcement Weighting System
4
 OSHA has historically used the number of completed inspections as an
important metric in evaluating its effectiveness each year.
 In an effort to post high numbers, compliance officers were often deployed
to conduct relatively simple inspections. The enforcement weighting system
changes all that.

Liberal Use of the General Duty Clause
5
 Section 5 of the OSH Act provides OSHA with the power of the so-called
General Duty Clause.
 The General Duty Clause provides that each employer must
“furnish to each of his employees employment
and a place of employment which are free from
recognized hazards that are causing or are likely
to cause death or serious physical harm to his
employees.”

OSHA’s New Injury and Illness Reporting
Requirements Changed Everything
 OSHA's updated reporting rule
expands the list of severe injuries
that employers must report to
OSHA.
 Since January 1, 2015, ALL
employers must now report:
• All work-related fatalities within 8
hours.
• All work-related inpatient
hospitalizations, all amputations
and all losses of an eye within 24
hours.

Statistics from Year One
Injury Reports:
 About 75% of the valid incidents
were hospitalizations that did not
involve an amputation or eye
injury
 About 25% were amputations
 Less than 1% were eye injuries
OSHA’s Response:
 About 55% of reports resulted in
rapid response investigations
seeking more information
 About 38% resulted in an on-site
inspection
 About 7% resulted in no action
7

Most Cited Standards in the Last Fiscal Year
8
1. Fall protection in construction
2. Hazard communication
3. Scaffolding in construction
4. Respiratory protection
5. Powered industrial trucks
6.Lockout/tagout
7. Ladders in construction
8. Electrical: wiring
9. Machine guarding
10. Electrical: systems design

Staggering Increase in
Fines for OSHA
Violations and Enhanced
Criminal Enforcement
9

OSHA Fines Are On The Rise For The First Time
in Twenty-Five Years

OSHA is Far More Likely to Bring Criminal
Charges than Ever Before
 New DOL and DOJ partnership
announced December 17, 2015
aimed at criminalizing workplace
safety violations.
 Environmental offenses often
occur in conjunction with worker
safety violations.
 This move dramatically increases
the possibility of criminal
prosecution for worker safety
violations that are discovered
along with environmental
violations.
11

Increased Emphasis on
Joint Employer Scrutiny
12

OSHA’s Temporary Employee Initiative

OSHA Moves Towards Joint Employer Liability
 NLRB’s Browning-Ferris Decision
 OSHA’s Franchise Memorandum

Whistleblowing and its
Impact on your Business

Continued Rise in Whistleblower Complaints
 The number of whistleblower
cases has been steadily rising
each year.
 There was a 6 percent increase in
whistleblower complaints in the
last fiscal year, driven by
workplace health and safety
complaints.
 Employees have become
increasingly aware of their
whistleblower protection rights
and continue to demonstrate
comfort and willingness to make
reports.
16

How OSHA Expects Employers to Prevent
Retaliation
 OSHA released a draft document titled “Best Practices for Protecting
Whistleblowers and Preventing and Addressing Retaliation.”
 The documents advises employers to approach whistleblower protection by:
• Engaging leadership in the development of an anti-retaliation program
• Creating an environment that encourages employees to speak openly with their
employers about health and safety issues
• Training
• Monitoring
• Independent auditing to ensure that the anti-retaliation program is working
 Comments were accepted from the public through January 16, 2016.
17

OSHA Clarifies Which Whistleblower Cases Will
Lead to Merit Findings
• Case is initiated by a complaint made to OSHA alleging unlawful
retaliation.
• If OSHA’s initial inquiry shows the complainant has alleged the existence
of facts and evidence sufficient to make a prima facie showing of
retaliation, OSHA then conducts an investigation to determine whether
the complaint has merit.
• OSHA will then make the determination whether to make merit findings
by determining whether there is a “reasonable cause” to believe that a
violation of the relevant whistleblower statute has occurred.
• To assert “reasonable cause,” OSHA must find that a reasonable judge
could rule in favor of the complainant; the evidence need not establish
conclusively that a violation did occur.
• OSHA’s dismissal findings must state that the Secretary has determined
that the complaint lacks merit or it not suitable for litigation and explain
why.
How the
Whistleblower
process works
today:
18

Rulemaking Activities

The Race to Push Through OSHA’s Most Desired
Regulations Before the End of the Obama Administration
20

Improve Tracking of Workplace Injuries and
Illnesses Final Rule Expected in March
 In the past, the forms have been hard copy documents.
 OSHA has announced, however, that in March of this year it will publish a
new rule requiring the vast majority of employers that keep OSHA injury and
illness logs to provide injury and illness information to OSHA electronically,
on a frequent basis. This will enable OSHA to more quickly identify
workplaces with high rates of injuries and illnesses and dispatch compliance
officers to those locations to conduct inspections.
 Disturbingly, the electronically submitted injury and illness data will be
“scrubbed of identifiers” and then placed on a publicly accessible database
so the public will be able to review employers’ injury and illness data.
21

What’s the Big Picture?
22

Visit EBG’s OSHA Law Update Blog
www.oshalawupdate.com
23

Questions?
24

Presented by
Valerie Butera
Member, Labor and Employment Practice
Washington, D.C. Office
vbutera@ebglaw.com
202-861-5325
25

OSHA Forecast: Developments to Watch in 2016 and Beyond

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Viewers also liked

Viewers also liked (14)

Similar to OSHA Forecast: Developments to Watch in 2016 and Beyond

Similar to OSHA Forecast: Developments to Watch in 2016 and Beyond (20)

More from Epstein Becker Green

More from Epstein Becker Green (20)

Recently uploaded

Recently uploaded (18)

OSHA Forecast: Developments to Watch in 2016 and Beyond