January 16, 2015 | by Steve Wilder

What to expect from OSHA in 2015

It’s difficult to believe that 2015 is here. Wasn’t it just yesterday that we were talking about the spring thaw and the start of baseball season? And now we are relaxing after a busy holiday seasons and stepping into a new year. And we aren’t the only ones.

Following the recent shift in power after the midterm elections in November, much uncertainty remains as to whether the Occupational Safety and Health Administration (OSHA) will continue its aggressive agenda of an enhanced enforcement, increasing citations and greater penalties or whether the new Congress will result in a softer, watered-down OSHA. Nobody knows, and we can only speculate.

An employer’s obligation to furnish a workplace free from recognized hazards is not limited to its own employees. Rather, under the agency’s “multi-employer worksite doctrine,” OSHA will issue citations not only to employers who expose their own employees to a hazardous condition (“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 (“correcting employer”); or
  • Had the ability to prevent, abate or correct the hazardous condition through the exercise of reasonable supervisory authority (“controlling employer”).

The past several years have seen an increase in OSHA using the multi-employer worksite doctrine to issue citations to numerous employers based on a single incident, and I expect that this will continue into 2015. Thus, employers who work with staffing agencies must not only ensure that their programs are adequate and their employees are trained; they also must ensure that employees from staffing agencies also adhere to OSHA’s standards. This liability is significant and can result in citations as well as criminal liability in the event of a fatality.

In 2014, OSHA implemented an initiative to protect temporary employees under the premise that those workers are not provided the same level of training and protections as full-time employees. Under this initiative, OSHA inspectors are required to inquire during inspections whether the inspected worksite has temporary employees and determine whether those employees are exposed to hazardous conditions. Moreover, during the inspection, OSHA also will inquire as to whether the training provided to the temporary workers is in a language and vocabulary the workers can understand.

If OSHA determines that the host employer failed to provide adequate training or protections to the temporary employees, then OSHA could issue citations not only to the temporary staffing agency but also to the host employer under the multi-employer worksite doctrine. To enforce this initiative, OSHA has hired compliance officers who are bilingual (or certified interpreters) to conduct employee interviews to determine whether they understood the training. If the training was in English and the employee is not fluent in English, then the training is not “effective” and the employer can be cited.

In healthcare, expect OSHA to continue to use the general duty clause to aggressively enforce citations related to:

•  Workplace violence,

•  Ergonomics and

•  Infectious diseases (Ebola).

In addition, with the Ebola threat that faces the world, it would not surprise me to see a major emphasis of protection from blood-borne pathogens (BBP) and respiratory protection compliance as well. Facilities would be well advised to make sure every “t” is crossed and “i” dotted in their BBP and respiratory protection programs.

NEW RECORDKEEPING REGULATIONS

Jan. 1, OSHA’s new recordkeeping regulations went into effect. Under the current rule, even if an employer is not required to maintain recordkeeping logs or record injuries, all employers, regardless of size, are required to report to OSHA an incident involving an employee death or the inpatient hospitalization of three or more employees within eight hours. Under the new standard, all employers are required to report to OSHA:

•  Within eight hours after the death of any employee as a result of a work-related incident; and

•  Within 24 hours after the inpatient hospitalization of one or more employees or the occurrence of an injury to an employee involving an amputation or loss of an eye as a result of a work-related incident.

The effect of this new rule will be dramatic because OSHA is required to inspect every report of death or injury described above. As a result, it has been estimated that OSHA will conduct an additional 10,000 inspections (from approximately 40,000) per year solely because of the increased reporting.

PREPARING FOR AN INSPECTION

As mentioned, the number of OSHA inspections is expected to dramatically increase in 2015. As such, more employers must become aware of their respective rights, as well as their employees’ rights during the OSHA inspection process. Employers should learn what their rights are regarding the scope of the inspection, what documents the agency is and is not entitled to and how to respond to requests for employee interviews so that they do not waive them during the inspection process.

Accordingly, it is critical in the next several months that employers train their supervisors and make employees aware of these rights. Unless this happens, employees cannot knowingly exercise their rights.

Mock OSHA audits continue to be a tool that every facility administrator should consider. Although a mock audit may not necessarily identify all potential deficiencies and violations, typically the major ones (those resulting in the greatest penalties) will be identified and the corrections made before an actual inspection ever takes place.

Only by taking proactive steps now can you minimize the damage of what might lie ahead in 2015.

Stay safe and stay in touch.

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