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February 22, 2018 OSHA Makes a Statement on Hex Chrome Enforcement

Andi Kenny

By Andi Kenney  Hex chrome

On January 19, 2018, OSHA issued a citation to Spirit Aerosystems, Inc., alleging one willful and five serious violations of the OSHA hexavalent chromium standard (29 CFR 1910.1026) and assessing $194,006 in penalties.

In the citation, OSHA alleges that the manufacturer of aerostructures (including portions of fuselages) willfully failed to prevent employee exposures to levels above the permissible exposure limit (PEL) of 5.0 ug/m3 8 hour time weighted average (TWA) and to implement feasible engineering and work practice controls “to reduce employee exposure to the lowest achievable level.” The citation notes an employee who was sanding and grinding was exposed to hexavalent chromium at 9.0 ug/m3 on a time weighted average, 1.8 times the PEL.

The citation further alleges that Spirit Aerosystems did not perform periodic monitoring every three months, did not perform monitoring when process changed, did not demarcate a regulated area for hex chrome, allowed employees to leave the hex chrome work area without removing contaminated clothing and equipment, and did not adequately train employees regarding the OSHA hex chrome standard. 

The citation is notable for several reasons. First, it is an indication that OSHA is still actively enforcing the hex chrome standard. Second, it underscores OSHA’s position that an increased scheduled work load is a process change that would require additional exposure monitoring. Third, it affirms that the aircraft painting exception, which establishes a 25 ug/m3 exposure limit, does not apply to grinding and sanding operations. Finally, it raises questions about how far an employer has to go to reduce exposures—does the employer’s obligation to implement controls require it to reduce exposure “to the lowest achievable level” as alleged in the citation or does the employer meet its obligation if it reduces exposure to the PEL?

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, OSHA, Sustainability

PEOPLE: Anne Samuels Kenney (Andi)

December 28, 2017 2017: The Corporate Environmental Lawyer Year in Review

Siros Torrence_jpg 

By Steven M. Siros and Allison A. Torrence

As 2017 draws to an end, we wanted to thank everyone that follows our Corporate Environmental Lawyer blog. 2017 has been an interesting year and we have enjoyed providing information on critical environmental, health and safety issues for the regulated community. As part of the year in review, we thought it might be interesting to highlight the most popular posts from each of the four quarters in 2017.

Q1 2017:

  1. Trump Administration: 2017 Insights
  2. New State 1,4-Dioxane Drinking Water Standard-New York Threatens to Take Action if U.S. EPA Doesn’t
  3. World Water Day: Wednesday, March 22, 2017--Jenner & Block Announces Special Water Series
  4. Trump Administration Issues Freeze on New and Pending Rules – Halting Dozens of Recent EPA Rules
  5. Great Lakes Compact Council Holds Hearing on Cities Initiative Challenge to Waukesha Diversion of Lake Michigan Water

Q2 2017:

  1. Federal Judge Orders Dakota Access Pipeline to Revise Environmental Analysis; Leaves Status of Pipeline Construction Undecided
  2. Litigation in D.C. Circuit Court Put on Hold While EPA Reconsiders 2015 Ozone Air Quality Standards
  3. Attorney-Client Privilege Does Not Protect Communications with Environmental Consultants
  4. News of OECA’s Demise May be Greatly Overstated
  5. EPA Announces Proposed Rule to Rescind ‘Waters of the United States’ Rule

Q3 2017:

  1. Court Decision Remanding FERC’s Evaluation of GHG Emissions May Derail $3.5B Pipeline
  2. Hurricane Harvey and Act of God Defense—Viable Defense or Futile Prayer
  3. Who is in Charge of Protecting the Environment—The Role of U.S. EPA and State Environmental Agencies During a Hurricane
  4. Shell Latest Target of CWA Climate Change Citizen Suit
  5. New Climate Change Lawsuit: Publicity Stunt or Reasonable Effort to Protect California Property Owners?

Q4 2017:

  1. Cities Risk Ratings Downgrade for Failure to Address Climate Change Risks
  2. Dumpster Diving Results in $9.5M Penalty Recovery for California
  3. Following Keystone Pipeline Oil Spill, Judge Orders Parties to Prepare Oil Spill Response Plan for Dakota Access Pipeline
  4. EPA Publishes Proposed Rule on Reporting Requirements for the TSCA Mercury Inventory
  5. Imagine a Day Without Water

We look forward to continuing to blog on breaking environmental, health and safety issues and we are sure that we will have plenty to blog about in 2018. Warmest wishes for a wonderful holiday season.

Steve Siros and Allison Torrence

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Steven R. Englund, Allison A. Torrence, Steven M. Siros

September 12, 2017 Third-Annual Environmental Attorney Reception at Jenner on Thursday 9/14

Torrence_jpgBy Allison A. Torrence

On Thursday, September 14th, from 5 pm to 7 pm, environmental attorneys and professionals will come together for a networking reception at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. This is the third year Jenner & Block has hosted this event, which continues to grow every year. Jenner & Block will be joined by a number of bar associations and organizations:

  • CBA Environmental Law Committee
  • CBA Young Lawyers Section Environmental Law Committee
  • ISBA Environmental Law Section
  • ABA Section of Environment, Energy, and Resources
  • Air & Waste Management Association Lake Michigan States Section
  • DRI Toxic Tort and Environmental Law Committee

Jenner & Block partner Allison Torrence is a former Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.

Details for this event are below. If you would like to join us at this reception, please RSVP here.

Environmental Attorney Reception

September 14, 2017 | 5:00 pm to 7:00 pm

Jenner & Block Conference Center | 45th Floor | 353 N. Clark St. | Chicago, IL 60654

RSVP

Reception Sponsors:

Sponsors

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Real Estate and Environment, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence

August 21, 2017 OSHA Electronic Reporting Website Temporarily Suspended Due to Security Breach

Torrence_jpgBy Allison A. Torrence

Not long after the Occupational Safety and Health Administration (OSHA) launched its Injury Tracking Application website for Electronic Submission of Injury and Illness Records on August 1, 2017, OSHA has temporarily suspended user access to the site due to an apparent security breach. Reports indicate that last week, OSHA received an alert from the United States Computer Emergency Readiness Team in the Department of Homeland Security that indicated there was a potential compromise of user information for the injury tracking application. OSHA has stated that one company appears to have been affected and that company has been notified of the issue.

The Injury Tracking Application website currently has the following message posted:

Alert: Due to technical difficulties with the website, some pages are temporarily unavailable.

OSHA has not indicated when the website will be fully available again or whether any additional changes will result from this apparent breach. The current deadline for employers to submit injury and illness logs electronically is December 1, 2017.

CATEGORIES: OSHA

PEOPLE: Allison A. Torrence

August 11, 2017 OSHA Accepting Electronic Injury and Illness Reporting Submissions

Torrence_jpgBy Allison A. Torrence

The Occupational Safety and Health Administration (OSHA) has officially launched its Injury Tracking Application website for Electronic Submission of Injury and Illness Records to OSHA. The website launch has been much anticipated following the Trump Administration’s delay of the compliance deadline in the 2016 rule titled “Improve Tracking of Workplace Injuries and Illnesses” (the Electronic Reporting Rule). As we previously reported on this blog, the Obama-era Electronic Reporting Rule required employers to submit injury and illness logs electronically, and the original compliance deadline was July 1, 2017. In June, OSHA extend the initial submission deadline for 2016 Form 300A data to December 1, 2017, to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation and allow affected entities sufficient time to familiarize themselves with the new electronic reporting system.

Under the Electronic Reporting Rule, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses), and 301 (Injury and Illness Incident Report). Establishments with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must electronically submit information from OSHA Form 300A.

Under OSHA’s proposed rule to extend the compliance deadline in the electronic reporting rule, all covered establishments must submit information from their completed 2016 Form 300A by December 1, 2017. In 2018, covered establishments with 250 or more employees must submit information from all completed 2017 forms (300A, 300, and 301) by July 1, 2018, and covered establishments with 20-249 employees must submit information from their completed 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, covered establishments must submit the information by March 2.

OSHA has now activated a secure website that offers three options for data submission. First, users can manually enter data into a web form. Second, users will be able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface).

OSHA’s website provides additional guidance and answers some FAQs on the new electronic reporting requirements.

CATEGORIES: OSHA

PEOPLE: Allison A. Torrence

July 7, 2017 OSHA Proposes 5-Month Delay in Electronic Reporting Requirements

Torrence_jpgBy Allison A. Torrence

On June 28, 2017, the Occupational Safety and Health Administration (OSHA) published a Proposed Rule (82 FR 29261) to delay compliance dates in the Obama Administration’s 2016 rule titled “Improve Tracking of Workplace Injuries and Illnesses”. As we previously reported on this blog, the Obama-era rule required employers to submit injury and illness logs electronically, and the original compliance deadline was July 1, 2017. OSHA is now stating that the electronic reporting system will not be operational until August 1, 2017.

OSHA explains its justification for the delay in its proposed rule:

This action proposes to extend the initial submission deadline for 2016 Form 300A data to December 1, 2017, to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation and allow affected entities sufficient time to familiarize themselves with the electronic reporting system, which will not be available until August 1.

The proposed rule does not impact other parts of the Obama rule, such as the rules prohibiting retaliation against employees who report a work-related injury or illness to an employer, which went into effect on August 10, 2016, and OSHA began enforcing on December 1, 2016.

Comments on the proposed 5-month delay of the compliance deadline are due by July 13, 2017. Comments may be submitted by mail, fax or electronically on www.regulations.gov.

CATEGORIES: OSHA

PEOPLE: Allison A. Torrence

May 18, 2017 OSHA Delays Electronic Recordkeeping and Reporting Rule

Torrence_jpgBy Allison A. Torrence

As of yesterday, May 17th, OSHA updated its website to indicate it will be extending the deadline for employers to submit injury and illness logs electronically on the OSHA website. The requirement to submit injury and illness logs electronically was part of a recent OSHA regulation, issued on May 12, 2016, which also addresses retaliation against employees who report a work-related injury or illness to an employer. 81 Fed. Reg. 29624-94.

Currently, the OSHA recordkeeping website states that:

OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.

(emphasis added).

OSHA has not published an official notice in the Federal Register or otherwise regarding extending the July 1st deadline. News outlets are reporting that OSHA spokeswoman Mandy Kraft said that the agency delayed the rule to address employers’ “concerns about meeting their reporting obligations” in time.

The language on the OSHA website suggests OSHA will take further action to formalize the extension. It is not clear whether any formal extension of the electronic reporting requirements will have any impact on the anti-retaliation regulations, found in the same rule. The Corporate Environmental Lawyer blog will report on any developments with this OSHA rule.

CATEGORIES: OSHA

PEOPLE: Allison A. Torrence

May 8, 2017 Jenner & Block Hosting Environmental Risk CLE Presentation with CBA and A&WMA

Torrence_jpgBy Allison A. Torrence

On Thursday, May 11th, from 12-1 pm, Jenner & Block will host a CLE presentation on Environmental Risk: Best Practices in Spotting, Evaluating, Quantifying and Reporting Risk. Business risk associated with environmental issues is an important topic that is often not fully understood by in-house counsel or outside attorneys and consultants. Effectively spotting, evaluating and managing environmental risk plays an important role in the success of a business and should be understood by all environmental attorneys and consultants advising businesses. This program will help you improve your ability to spot, evaluate, quantify and report on risk to provide value for your clients and their businesses.

Jenner & Block is pleased to be joined by members of the CBA Environmental Law Committee and the Air & Waste Management Association.

CBA AWMA Logos
The presentation will be moderated by Christina Landgraf, Counsel, Environmental, Health & Safety, United Airlines, Inc. and Jenner Partner Allison Torrence. The panel of speakers will include Jenner Partner Lynn Grayson, Kristen Gale, Associate, Nijman Franzetti and Jim Powell, Director, Environmental Permitting, Mostardi Platt.

The CLE presentation will be held at Jenner & Block, 353 N. Clark St., Chicago, IL – 45th Floor, from 12-1 pm. Lunch will be provided starting at 11:45 am. If you are unable to attend in person, you can participate via webinar.

You can RSVP here.

Any questions can be directed to Pravesh Goyal: (312) 923-2643 or pgoyal@jenner.com

CATEGORIES: Air, Cercla, Climate Change, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence

March 8, 2017 OSHA Violation Doesn’t Abrogate Workers’ Compensation Immunity

Steven Siros Photo By Steven M. Siros OSHA logo

Most state workers’ compensation regulations provide an intentional tort exception for employers' workers’ compensation immunity.  A Louisiana district court recently rejected a plaintiffs’ effort to trigger this intentional tort exception to workers’ compensation immunity by citing an OSHA “willful” violation as proof that their employer consciously desired that plaintiffs’ suffer their alleged injuries. In the case at issue, plaintiffs were overcome by fumes when they were ordered to clean a tank rail car that contained hazardous chemicals. Their employer was cited for OSHA violations and several of those violations fell into the “willful” category. The court found that these allegations insufficient to meet Louisiana’s “extremely high” standard necessary to avoid the workers’ compensation bar. Hernandez v. Dedicated TCS, LLC (E.D. La. 3/3/17). 

Last year, several courts in Washington and Kentucky had similarly ruled that state workers’ compensation laws provided the exclusive remedy for employees injured in the course of their employment notwithstanding OSHA willful violations. But a U.S. District Court in Idaho recently ruled that employees could pursue tort claims after they were ordered to retrieve radioactive plates without proper protection gear in violation of applicable OSHA regulations.

CATEGORIES: OSHA, Sustainability

PEOPLE: Steven M. Siros

March 3, 2017 Trump Adminstration: 2017 Insights

Lynn Grayson photo

By E. Lynn Grayson

This week I published an article in the Chicago Daily Law Bulletin Trump election puts environment into less than green state.  In this article, I discuss my thoughts on environmental issues during the transition from the Obama Administration to the Trump Administration. I specifically address: 1) what authority President Trump has to implement environmental changes; 2) what environmental actions have been taken to date; 3) insights into future environmental changes we are likely to see; and 4) reaction from the environmental community.

If you would like to hear more about what’s happening on the environmental front in the Trump administration, please join us next Tuesday, March 7 at Noon for a program titled Environmental, Health & Safety Issues in 2017: What to Expect From the Trump Administration. My partners Gay Sigel, Steve Siros and Allison Torrence will be providing the latest updates on what we know and what we can anticipate from the Trump administration in connection with environmental, health and safety considerations.

If you would like to join us for this program or participate via webinar, please RSVP here.

CATEGORIES: Cercla, Climate Change, Hazmat, OSHA, RCRA, TSCA, Water

February 28, 2017 Gay Sigel, Steve Siros, and Allison Torrence Speak at March 7 CLE Program

Lynn Grayson Photo

Jenner Block logo

By E. Lynn Grayson

Jenner & Block Partners Gay Sigel, Steve Siros, and Allison Torrence will speak at the upcoming program Environmental, Health, and Safety Issues in 2017: What to Expect From the Trump Administration, hosted by Jenner & Block’s Environmental, Workplace Health & Safety Practice Group on Tuesday, March 7 from 12:00 pm to 1:00 p.m. With the Trump Administration beginning to take shape, federal environmental, health, and safety (EHS) policy is certain to shift to the right. This CLE program will provide an overview of the Trump Administration’s actions impacting EHS matters to date and prognosticate on changes that may be forthcoming. You are invited to join us for this special program in person or via webinar. If you plan to participate, please RSVP as indicated below.

Program Details:

Tuesday, March 7, 12:00—1:00 p.m. with lunch starting at 11:45 a.m.

Jenner & Block, 353 North Clark, Chicago, IL—45th Floor Conference Center 

For more information about the program and to RSVP, please connect here.

CATEGORIES: Cercla, Climate Change, Consumer Law and Environment, FIFRA, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence, Steven M. Siros, Gabrielle Sigel

January 30, 2017 Happy New Year from the Corporate Environmental Lawyer Blog

Steven Siros Photo Allison TorranceBy Steven M. Siros and Allison A. Torrence

As we begin the New Year, we wanted to take a moment to look back at some of the major EHS developments in 2016 and think about what we can expect in 2017.

2016 was a busy year for the Corporate Environmental Lawyer blog, which is now in its sixth year with over 760 posts. In 2016, we had nearly 100 blog posts from 10 different authors and over 6,700 visits to the site.

Our five most popular blogs from 2016 were:

EPA Lacks Authority to Regulate Plastic Microbeads in Water, by E. Lynn Grayson

Court Orders New EPA Spill Prevention Rules, by E. Lynn Grayson

Bipartisan TSCA Reform Act Signed by President Obama, by Allison A. Torrence

Navigating Hawkes, the Newest Wetlands Ruling from the Supreme Court, by Matt Ampleman

ExxonMobil, 13 State Attorneys General Fight Back Against the Exxon Climate Probes, by Alexander J. Bandza

As always, we are monitoring a variety of issues that are important to you and your business, including, for example, RCRA regulatory changes, the future of climate change regulation, implementation of the TSCA Reform Act, and new developments in environmental litigation. You can find current information about these developments and more on the Corporate Environmental Lawyer blog. If you don’t find what you are looking for on our blog, we welcome your suggestions on topics that we should be covering. In addition, keep abreast of new developments in the EHS area through our Twitter @JennerBlockEHS.

We also look forward to the opportunity to share our thoughts and insights with respect to current EHS issues with you at an upcoming program:

The program will take place at Jenner & Block’s Chicago office and also will be available as a webinar. We will post a formal invitation to the program in a few weeks.

We also invite you to visit our newly redesigned Environmental and Workplace Health & Safety Law Practice website for more information about our practice. We look forward to another exciting year and to connecting with you soon.

CATEGORIES: Air, Climate Change, Greenhouse Gas, Hazmat, OSHA, RCRA, Sustainability, Toxic Tort, TSCA, Water

PEOPLE: Allison A. Torrence, Steven M. Siros, Gabrielle Sigel, Alexander J. Bandza

January 20, 2017 New OSHA Penalties Announced

Andi Kenney Photo

By Andi S. Kenney

On January 18, 2017, the Department of Labor published a final rule adjusting civil penalties under the Occupational Safety and Health Act for inflation as required by the Federal Civil Penalties Inflation Adjustment Act of 2015.  As required by the Act, the adjustment is based on changes to the Consumer Price Index for all Urban Consumers.  Unlike last year’s catch-up adjustment, which increased penalties by 78%, this year’s inflation adjustment is a little over 1%.  The new penalties compared to the pre-August 2016 penalties can be found here.

CATEGORIES: OSHA

PEOPLE: Anne Samuels Kenney (Andi)

January 13, 2017 OSHA Issues Final Beryllium Rule Reducing Workplace Exposure Limit 10-Fold

Allison Torrence Photo

By Allison Torrence

The Occupational Safety and Health Administration (OSHA) published a final rule on Occupational Exposure to Beryllium in the Federal Register on January 9, 2017. The final rule reduces the permissible exposure limit (PEL) for beryllium to 0.2 μg/m3, averaged over 8-hours. The previous PEL for beryllium, established more than 40 years ago, was 2.0 μg/m3. The rule also establishes a new short term exposure limit for beryllium of 2.0 μg/m3, over a 15-minute sampling period.

As we discussed previously on this blog, OSHA proposed this rule on August 7, 2015 and took extensive public comment before issuing this final version. OSHA estimates that approximately 62,000 workers are exposed to beryllium in their workplaces and that the rule will save almost 100 lives from beryllium-related diseases and prevent 46 new cases of chronic beryllium disease each year, once the effects of the rule are fully realized.

In addition to the PEL reductions, the final rule requires employers to use engineering and work practice controls (such as ventilation and change rooms) to limit worker exposure to beryllium; provide respirators when controls cannot adequately limit exposure; limit worker access to high-exposure areas; develop a written exposure control plan; and train workers on beryllium hazards. The rule also provides for medical exams to monitor exposed workers and medical removal protection benefits to workers identified with a beryllium-related disease.

The rule will take effect on March 10, 2017. Employers will have one year (until March 12, 2018) to comply with most of the requirements, two years (until March 11, 2019) to provide any required change rooms and showers, and three years (until March 10, 2020) to implement engineering controls.

More information on the Occupational Exposure to Beryllium rule is available on the OSHA website.

CATEGORIES: Air, Hazmat, OSHA, Toxic Tort

PEOPLE: Allison A. Torrence

December 6, 2016 OSHA’S New Anti-Retaliation Rule: Effect on Safety Incentive Programs

By Gabrielle Sigel and Andi Kenney

On May 12, 2016, the U.S. Occupational Safety and Health Administration ("OSHA") issued a final rule addressing employers' workplace injury and illness reporting and recording obligations. 81 Fed. Reg. 29624-94. One portion of the new rule addresses retaliation against employees who report a work-related injury or illness (collectively, "injury") to an employer. Specifically, new § 1904.35(b)(1)(iv) provides: "You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness." 29 CFR § 1904.35(b)(1)(iv). OSHA also added another new rule:  An employer “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 CFR § 1904.35(b)(1)(i).

The new rule, particularly § (b)(1)(iv), was challenged in federal court, with plaintiffs seeking a nationwide preliminary injunction prohibiting the rule's enforcement. TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). On November 28, 2016, the court denied plaintiffs' request for an immediate injunction, but said that its decision on the preliminary injunction does not reflect its decision on the merits of plaintiffs' legal challenges to the rule. Without the preliminary injunction, OSHA may begin enforcing the new rule as of December 1, 2016.

OSHA stated that, through new rule § 1904.35(b)(1)(iv), it was creating an "enhanced enforcement tool" to prevent retaliation for injury reporting. 29 Fed. Reg. 29671. Now, rather than having to wait for an employee complaint before filing a federal court lawsuit, as it had pursuant to § 11(c) of the OSHA Act, an OSHA inspector can issue an administrative citation and seek penalties, like it does for other alleged rule violations, without necessarily requiring an employee complaint or first going to federal court.

OSHA stated that this new enforcement tool was needed to address "the retaliatory nature of the employee incentive programs at some workplaces…." 29 Fed. Reg. 29673. OSHA cited studies and examples of injury rate-based incentive programs, "which reward workers for achieving low rates of reported injury and illnesses" and, purportedly, cause underreporting of work-related cases, including due to peer pressure. Id. OSHA concluded that, although the "specific rules and details of implementation of any given program must be considered" when evaluating whether the new rule has been violated, "it is a violation for any employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus…." 81 Fed. Reg. 29674. OSHA also explained that if the incentive program "makes a reward contingent upon… whether employees correctly follow legitimate safety rules…, the program would not violate this provision." Id.

OSHA tried to clarify how it would use § 1904.35(b)(1)(iv) as an "enhanced enforcement tool." On October 19, 2016, it issued a memorandum to all OSHA Regional Administrators, interpreting § 1904.35(b)(1)(iv) ("the Interpretive Memo"). In the Interpretive Memo, OSHA stated that the rule "does not prohibit safety incentive programs. Rather, it prohibits taking adverse action against employees simply because they report work-related injuries or illness." Interpretive Memo, § II.C. OSHA gave an example of an employer-sponsored raffle awarded only in a month in which no employees report lost workday cases. Even if the reporting employee only would have had a chance to win the raffle, by withholding the raffle in a month when an employee reported a lost workday case, OSHA believes the employer is retaliating against that reporting employee. Id.

OSHA specified, however, that it would not issue a citation for violation of § 1904.35(b)(1)(iv) unless OSHA has "reasonable cause to believe that a violation occurred—in other words, that an employer retaliated against an employee for reporting." Interpretive Memo, § II. Moreover, OSHA has the burden of proof to show that an employee was discriminated against.

Next Steps for An Employer

An employer should evaluate any safety-related incentive programs based on three criteria: (1) what benefit is conveyed or withheld; (2) who receives the benefit (or could suffer from a withheld benefit); and (3) what triggers the benefit being conveyed or withheld. If the benefit is withheld based on any employee's report of a workplace injury or illness, the employer could be at risk for an OSHA citation under §§ 1904.35(b)(1)(i) and/or (b)(1)(iv).  The employer also should evaluate whether, even if a reporting employee does not qualify for the benefit, the employee could suffer consequences, including negative reactions by supervisors, if the employee reports an injury. On the other hand, a very small benefit garnered through an incentive program may not be seen as reasonable discrimination.

OSHA's issuance of a citation should depend on factual and legal determinations, including finding that an employee who reported an injury would have qualified for the incentive program's benefit and that the denial of the benefit "could well dissuade" a reasonable employee from reporting the injury. Interpretive Memo, fn. 6. However, any safety incentive program based on reported injuries may well be viewed skeptically by an OSHA inspector and may lead to a more in-depth evaluation of the employers' entire recordkeeping program.

To avoid a potential for liability, an employer should consider ceasing any incentive program that is based on injury reporting. An employer may continue to track reported injuries or have goals for limited or no reported injuries, but the employer will remain at risk for an OSHA citation and penalties if any significant benefit or withdrawal of benefit is attached to the fact or number of injuries reported. OSHA continues to support safety-based incentive programs based on factors other than reported injuries. Programs tracking other metrics, such as whether employees comply with safety rules (e.g., consistently wearing eye protection), attend training, or other leading indicators of safety compliance or positive safety performance, would not subject an employer to scrutiny under OSHA's new rule.

CATEGORIES: OSHA

PEOPLE: Anne Samuels Kenney (Andi), Gabrielle Sigel