By Guest Steve Babitsky, President and Founder of SEAK, Inc.
Steve Babitsky recently interviewed OSHA Attorney, Gary Auman, on the latest developments at OSHA.
Q. What is happening with OSHA’s safety retaliation plans?
Currently, OSHA is enforcing retaliation claims under Section 11(c) of the OH Act. OSHA’s proposal for enhancing the recording keeping regulations under the Code of Federal Regulations is still pending in the rule making process. From a practical standpoint, it is important for employers to exercise care in how they treat reports of workplace injuries. This includes processing of workers’ compensation claims. OSHA announces several years ago that it would consider any adverse actions taken with regards to an employee for any aspect of the processing of a workers’ compensation claim to potentially be retaliatory misconduct by the employer.
Q. How does OSHA impact the compensability of some workers’ compensation claims?
OSHA is intended to establish regulations to protect employees in the workplace. The area in which many employers have issues is in the area of OSHA recordkeeping regulation and the determination of compensability of a workers’ comp claim. OSHA recordkeeping rules require the recording of any workplace injury, whether or not state workers’ comp law would deem the injury or condition compensable. An employer may consider a condition idiopathic with employment and non-compensable while OSHA recordkeeping rules require the employer to record the condition on the OSHA 300 log. In most states the fact that a condition is recorded on the OSHA 300 log is not considered an admission against interest by the employer that the condition is also compensable.
Q. What new OSHA standards are probably in the near future?
OSHA just issued a final rule for confined space for the construction industry. This rule is broader than the existing rule in general industry. We are waiting for OSHA to issue its final rule for crystalline silica. This standard will place fairly onerous regulations on any employer whose employees have nay exposure to silica dust in very small quantities. We are also waiting for OSHA to issue its final rule on electronic recordkeeping with or without the August 2014 proposed language that would greatly alter the existing safety retaliation provisions in Section 11(c) of the Act.
Q. What do you see for the future of OSHA’s enforcement actions?
We have seen an increase in OSHA enforcement activity. Also, OSHA compliance officers seem to be taking a more liberal interpretation of the requirements of existing standards. In other words, more cases are being forced to litigation by notice of contest in order to get resolution of standards interpretations. During inspections compliance officers are much more careful than ever before to obtain evidence on the employer’s safety enforcement program, so they can defend against the affirmative defense of unpreventable employee or supervisor misconduct. More minor violations are being cited that in past years. In other words more citations are being issued in situations that might have previously been handled with a warning to the employer and immediate correction by the employer. Finally, it seems as if more area directors are unwilling to reclassify citations in order to settle them, again forcing more cases into contest. Enforcement in states with their own OSHA programs still all over the map. Some states are much more lenient than federal OSHA, while some are way more strict.
Gary Auman, Esq. is a shareholder with the Dayton, Ohio firm of Dunlevey Mahan & Furry. He directs the firm’s administrative law practice in workers’ comp and OSHA.
Attorney Auman will be speaking at the SEAK 2016 National Workers’ Compensation and Occupational Medicine Conference to be held on July 20-22, 2016 on Cape Cod, MA. For additional information about the SEAK Workers’ Compensation and Occupational Medicine Conference please visit http://workerscompensationconference.com/.
