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.

ogletreedeakins.com

EEI - OSHA UPDATESeptember 25, 2018

Presented by: Melissa A. Bailey (Washington, D.C.)[email protected](202) 887-0855

.

© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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Agenda

What is happening with recordkeeping? Electronic submission Anti-retaliation provisions

Enforcement – What are the points of contact for electric utilities and their contractors?

2



Recordkeeping – A Review

OSHA revises Recordkeeping regulation Electronic submission of OSHA 300A forms for

establishments with: 250 or more employees 25 or more employees in certain industries (including electric

power generation and construction) Electronic submission of OSHA 300 Logs and 301 forms for

establishments with 250 or more employees Anti-retaliation provisions affecting certain safety

incentive programs, post-accident drug testing and injury/illness reporting

3




OSHA compliance guidance: “We know Section 11(c) already addresses this conduct, but we need an additional way to enforce” No secret that OSHA has always viewed Section 11(c) as

inadequate Typical “midnight regulation” pushing the envelope in terms

of authority Two lawsuits filed – Oklahoma and Texas

OSHA does not have authority to create a new remedy Any change must come from Congress

4




Two lawsuits filed NAHB v. Acosta – OK District Court TEXO/ABC/AGC v. Acosta – TX District Court

Same general arguments in both OSHA has no authority to promulgate anti-retaliation

provisions NAHB suit – OSHA is not permitted to publish OSHA 300

Logs and 301 forms Summer 2017 – both cases stayed because OSHA

said it would make changes

5



Recordkeeping – Current Status

OSHA issues Proposed Rule on July 30, 2018 Eliminate electronic submission requirement for OSHA 300

Logs and 301 forms Only 300A forms would be submitted

Basis? Employee privacy Information “adds uncertain enforcement value, but poses

potential privacy risk under FOIA” Combined with “reporting burden” and “burden on OSHA,”

not worth the risk to collect the OSHA 300 Log and 301 form data

6




Does this theory hold water? OSHA “believes” that information is exempt from FOIA

disclosure Employers asked to redact data before submitting “Risk remains so long as there is a non-trivial change that

any court in any of the nation’s 94 federal judicial districts” might order disclosure

7




“Uncertain” enforcement value True in the aggregate – 300A forms can provide industry

data Untrue for individual companies – OSHA is giving up the

ability to click a few buttons and see the full corporate picture of a company’s injury and illness history

OSHA CSHO: “I see this company has had 4 employees experience arc flash burns over the past 5 years. I am going to focus on PPE and tag out and ask what corporate changes were made in the wake of those injuries. If I find a violation, it may be ‘willful.’”

8




What about the anti-retaliation provisions? June 28, 2017: OSHA delays the deadline for electronic

submission and says it “intends to issue a separate proposal to reconsider, revise or remove other provisions in the prior final rule”

[This is code for: “We will make changes or eliminate the anti-retaliation provisions]

When? What will the changes be?

9




Theory: Eliminate the electronic submission piece of privacy grounds first, and the need for the anti-retaliation provisions falls away OSHA originally added the anti-retaliation provisions because

labor unions claimed that employers would have even more reason to chill reporting if data was public

If data is not public, Section 11(c) is adequate and no need for anti-retaliation provisions

Other option: Simply admit that OSHA did not have the authority to promulgate the change to begin with…

10




What is happening in the meantime? Anecdotally, OSHA does not seem to be enforcing the

provisions (except perhaps in egregious cases) Ripe for a test case on post-accident drug testing or safety

incentive programs, but perhaps the right circumstances haven’t arisen? OSHA doesn’t want to take it on?

11




Changes to the guidance – VPP Memo #5 has been revised Chart identifying “compliant” programs eliminated New “Decision Flowchart”

Based solely on rates? Corporate-wide or unit or division-wide? Unit or division: Could “any part of it deter reporting?” Corporate: “Can it be linked to a specific incident/site?” “Could

any part of it deter reporting?”

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What has really changed? Perhaps not much OSHA must prove not that a system “could” deter reporting,

but that an employee was retaliated against for reporting an injury

Is there an appetite from OSHA to go after unit/division or corporate-wide programs? Doubtful

OSHA is likely to go after only the most egregious cases

13




Practical Tips Eliminate any incentive programs that are individual to

employees, e.g. Melissa gets a bonus if she doesn’t report an injury – these programs have always been illegal

Blanket post-accident testing likely continues to be compliant Many exemptions – save on workers’ comp costs, maintain

“Drug Free Workplace” under state law Risk is low – case where employee tests positive in a “bee

sting”-type scenario

14




Practical Tips Exercise some discretion with discipline for violating

“immediate reporting” rules Employee cuts finger on shop floor and puts a bandage on it –

this must be reported immediately; discipline appropriate Employee lifting boxes feels back pain the next day – this may

be reported the next day; discipline inappropriate Discipline for violations of vague rules – “maintain situational

awareness” – following injuries will continue to be problematic

15



Enforcement

What are utilities and contractors seeing? [Important disclaimer – most of this is anecdotal] Fatalities – trends

Intense number of document requests/interviews Press coverage is important to OSHA – more likely to hit the

employer hard when the press has been negative Early involvement from the Solicitor’s office, particularly in

technical cases

16



Enforcement

Fatalities – trends Deference to the union Creativity/being pro-active continue to be critical Crisis management plans are crucial

Example A: Client was ready. Legal counsel on site within hours and able to control flow of information, including OSHA camped out in the control room with agitated IBEW members

Example B: Client less ready. Multiple documents produced before legal counsel involved; little pushback – “OSHA is here to help” attitude that has made things difficult.

17



Enforcement

Reportable injuries – trends Little rhyme or reason to when OSHA sends an RRI letter or

comes out to inspect Example of deference to the union:

Employer submits an RRI response OSHA closes the case Union tells OSHA that employer is wrong, and OSHA comes

out to inspect

18



Enforcement

Reportable injuries – trends Attitude from the Obama Administration continues: “Prove

you are innocent. We will take the set of facts that makes the employer look as bad as possible and let the lawyers sort it out later” No reason not to be pro-active/creative Build a record for the Solicitor’s Office and litigation

OSHA seems more likely to inspect when it is a contractor Not clear why OSHA seems completely uninterested in host/contractor

communication provisions

19



Enforcement

Complaints – OSHA’s enforcement activities seem to depend on: Who filed the complaint? Deference to the union What is the subject matter?

OSHA focus on (again, anecdotal) Lockout/tagout – disturbing/disappointing lack of

understanding as to how LOTO works in a power plant Heat stress Silica Whatever the union wants to talk about

20



Enforcement

Surprising lack of focus on newer Section 1910.269/Subpart V provisions

Why is OSHA so aggressive? No permanent leadership at OSHA This is not a traditional Republican Administration OSHA is run by career people, and they liked the Obama

system Many retirements – Ann Rosenthal, Tom Galassi – of long-

time agency employees; new leadership “grew up” with Obama

21



Questions?



Thank You

23

Melissa A. BaileyOgletree Deakins, Nash, Smoak & Stewart, P.C.

1909 K Street, N.W.Suite 1000

Washington, DC 20006Phone: 202-887-0855

[email protected]

.

ogletreedeakins.com

EEI - OSHA UPDATESeptember 25, 2018

Presented by: Melissa A. Bailey (Washington, D.C.)[email protected](202) 887-0855

.

© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

eei - osha update › eei › conference s... · ogletreedeakins.com eei - osha update september...

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