On March 22, 2013, Sen. Patty Murray (D-WA) and 10 other Senate democrats introduced S. 665, the “Protecting America’s Workers Act” (PAW Act). This legislation is a new version of previously-introduced bills from sessions past but includes a few modifications. The aim is enhancing OSHA’s ability to civilly and criminally prosecute employers for violations of mandatory standards, expand whistleblower protection rights under Section 11(c) of the original Occupational Safety and Health Act (OSH Act) of 1970, and add new sectors to OSHA jurisdiction.
PUBLIC SECTOR EMPLOYERS
The first section of the measure concerns public sector employers (state and municipal governments), which are currently exempt from federal OSHA enforcement, although those public sector employers can be cited if they are located in one of the OSHA “state plan states” or in a federal OSHA state (e.g., New Jersey, Connecticut, New York) where the state has specifically consented to have oversight. In expanding OSHA’s scope of authority, the legislation could also allow OSHA jurisdiction where other federal agencies have not promulgated occupational safety or health standards that are at least as effective as OSHA’s rules.
On the whistleblower front, the bill strengthens OSHA’s powers to prosecute employers who retaliate against workers who testify for OSHA in proceedings, contact OSHA with hazard complaints, speak privately to OSHA inspectors, report an injury/illness to the employer, or even who raise safety or health concerns internally with an employer. It also formalizes the worker’s right to refuse to perform work where he/she “has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of the employee or other employees.” In these work-refusal situations, the employee—where practicable—would have to first attempt to communicate the safety or health concern to the employer and not gotten a response. If an employer was found to have violated the worker’s whistleblower rights, the agency (or court) could order injunctive relief, compensatory and exemplary damages, affirmative action to abate the violation, reinstatement and restoration of benefits and seniority, and expungement of derogatory information in the employee’s personnel file. Procedurally, the statute of limitations for filing a whistleblower complaint with OSHA would be extended from the current 30-day period to 180 days.
In the enforcement arena, filing a citation contest would no longer result in a stay of abatement of an alleged serious, willful, or repeated violation unless the company filed a motion to stay abatement, underwent a hearing on this preliminary issue, and demonstrated a substantial likelihood of success in disputing the citation—in effect requiring a mini-hearing on the merits of the employer’s defense before it has the opportunity to conduct discovery of OSHA’s evidence or witnesses. OSHA would also start charging interest on any contested citations, which would be due if the citation is upheld.
OSHA civil penalties would be increased from the current $70,000 maximum to $120,000 ($250,000 maximum for willful or repeated violations contributing to the death of a worker) and there would be a new minimum penalty of $8,000 for anything classified as willful or repeated. The maximum civil penalty for serious and other-than-serious violations would rise to $12,000 ($50,000 if related to the death of an employee).
Criminal penalties would be expanded as well. Currently, such prosecutions in federal OSHA jurisdiction only occur where there is a willful violation resulting in the death of a worker, and the maximum penalty is 6 months imprisonment. The new legislation would alter this to “knowing” violations (a lesser standard of proof) that contribute to the death of a worker or caused serious bodily harm—with maximum terms of 10 years and 5 years, respectively. Serious bodily harm is defined as an injury or illness presenting a substantial risk of death, protracted unconsciousness, obvious disfigurement, or protracted loss/impairment of a bodily member, organ, or mental faculty. An individual could also be criminally prosecuted for giving advance notice of, or impeding an inspection, and this would imprisonment for up to 5 years. All of these criminal cases would additionally carry criminal penalties of up to $250,000.
GENERAL DUTY CLAUSE
Another significant change made through the legislation is expansion of OSHA’s “General Duty Clause” (GDC) to make the controlling employer (in construction, usually the “general contractor”) responsible for maintaining a place of employment free from recognized hazards that could cause serious physical harm to anyone performing work at the place of employment—whether or not they were the employer’s own workers. The legislation also bars OSHA from reclassifying willful or repeated violations to “unclassified,” which has been used frequently by companies engaging in federal or state construction work to avoid debarment consequences arising from such elevated actions.
Reporting requirements would also change for construction sites, as one section of the bill specifies that the “site-controlling employer” would have to keep a site log of all recordable injuries and illnesses for all employees on the worksite, including those performing work for other contractors. OSHA’s recordkeeping requirements would be amended to specify that the agency would have to be notified within 8 hours not only concerning fatalities (as is currently the case) but also any injury or illness that results in the in-patient hospitalization for medical treatment of any employee.
Although the current contentious environment in Congress does not lend itself to bipartisan efforts—and the business community has long been opposed to democratic-sponsored OSHA reform bills—many times safety-related legislation is event-driven. Given the high profile catastrophic explosion at the West, Texas, fertilizer factory, OSHA oversight hearings are likely to occur on why more stringent preventive requirements and enforcement was not in place. Those could lead some fence-sitters to lean in favor of the legislation’s passage. ■
About The Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employers in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, May 2013
Did you enjoy this article?
Subscribe to the FREE Digital Edition of Modern Contractor Solutions magazine.