Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

On Thursday, the Senate confirmed the nomination of David Michaels to serve as the Assistant Secretary of the Department of Labor’s Occupational Safety and Health Administration (OSHA). President Obama named Michaels as his pick in July. The Senate Health, Education, Labor and Pensions (HELP) Committee approved his nomination on November 18.

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The Obama administration declared a public health emergency regarding the swine flu outbreak to ensure that the Department of Health and Human Services has the resources it needs to respond quickly and effectively in the event that the pandemic threat level is raised.

The World Health Organization recently raised the alert level to phase 4 — level six being a full pandemic — meaning that there is sustained transmission among people in at least one country. Monday was the first time this alert level was raised above phase 3.  Secretary Janet Napolitano, head of the Department of Homeland Security, told reporters that the U.S. is preparing as if the swine flu outbreak is a full pandemic. President Obama assures the public that it is not a cause for alarm but rather a "heightened state of alert.” Labor Secretary Hilda Solis has recently stated that enforcing worker safety and health regulations would be one of her top priorities. 

Employers should assemble a pandemic team and devise a plan if they have not already done so. The team should develop a coordinated and efficient pandemic response plan so that the needed public health information is gathered and transmitted, and that communications to managers and employees about operations, cleaning protocols, leave of absences and benefits are consistent and effective. This information should be disseminated so anticipated disruptions are managed effectively while avoiding litigation risks and panic in the workplace.  

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Emily Spieler, an academic and employee advocate, has been selected as the Obama Transition Team leader on issues related to the Occupational Safety and Health Administration. As such, Spieler will be charged with, among other things, vetting candidates for the position of Assistant Secretary of Labor for OSHA.

Spieler is currently the Dean and Edwin W. Hadley Professor of Law at Northeastern University School of Law in Boston. Prior to teaching, she worked as a public interest attorney, focusing her practice on the legal problems of workers, particularly those injured on the job. Her positions include serving as a special assistant attorney general for the Massachusetts Department of Public Health's Lead Poisoning Prevention Division, Commissioner of West Virginia’s Workers’ Compensation Fund, and West Virginia’s first deputy attorney general for civil rights. Spieler has also served as a member of the state’s Human Rights Commission. Additionally, she has held a position on the National Institute for Occupational Safety and Health.

Spieler is a very accomplished individual and seems to be more than qualified to implement Obama’s vision for OSHA. She has written extensively on workers’ compensation and occupational safety issues, and, according to all indications, is a proponent of legal intervention in the private sector to encourage and promote workplace safety. For instance, she would likely support providing employees with additional avenues of recovery for workplace injuries; encouraging safety through the use of inspections and greater oversight in the workplace; increasing the use of penalties to gain compliance; and better review of the process for rulemaking and enforcement.

Obama has a clear vision that OSHA will be a very active, well supported agency. The selection of Spieler is another indication that the Obama Administration will stand behind its goal of focusing on increasing workplace safety oversight and enforcement. Spieler has already received requests that the next Assistant Secretary of Labor have an extensive background and training in occupational health and safety and a lifelong commitment to occupational health and safety. In addition to these traits, Spieler will certainly seek out candidates that support the reintroduction and implementation of ergonomics regulations; implementation of more extensive combustible dust standards; and other workplace safety programs that will increase employer obligations to provide safer workplaces. Spieler may be in charge of this vetting process, but she would seem to make the best candidate for the possession herself, and if not her, it will certainly be someone who shares her vision on safety in the workplace.

Jeremy Stewart, an associate in Littler’s Chicago office, and Littler’s Workplace Safety Team contributed to this article.
 

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In a final rule published December 12, 2008, the Occupational Safety and Health Administration (OSHA) allows employers who violate the agency’s rule on personal protective equipment (PPE) to be penalized on a per-employee basis. Previously, employers who failed to provide PPE to covered employees could be issued a citation for the aggregate offense only. Under the new rule, each instance in which any one employee is not provided with PPE or applicable safety training is deemed a separate OSH violation.

This rule does not, however, create any new OSHA safety and health standards or make substantive changes to the existing law. It merely clarifies an employer’s duty to provide PPE (including eye, hand, face, head, foot and hearing protection, respirators, and other forms of PPE) to each employee under the various respirator and training standards articulated in 29 CFR Parts 1910 through 1926.

The impetus for this rule was the Occupational Safety and Health Review Commission’s decision – later affirmed by the U.S. Court of Appeals for the Firth Circuit – that a Houston businessman who failed to provide respirators or safety training to 11 undocumented employees who handled asbestos could not be charged with safety violations for each employee, as the plain language of the safety standard addresses employees in the aggregate, not individually. Secretary of Labor v. Erik K. Ho, Ho Ho Ho Express, Inc. and Houston Fruitland, Inc., 20 O.S.H. Cas. (BNA) 1361 (Rev. Comm’n 2003), aff’d, Chao v. OSHRC and Erik K. Ho, 401 F.3d 355 (5th Cir. 2005).

In response, the final rule firmly states that:

The agency is proposing to amend its standards to make it unmistakably clear that each covered employee is required to receive PPE and training, and that each instance when an employee subject to a PPE or training requirement does not receive the required PPE or training may be considered a separate violation subject to a separate penalty.

This rule is yet another example of OSHA adopting a rule to expand and clarify its enforcement power. On February 13, 2008, a final rule became effective that set forth a scheme by which employers are required to pay for nearly all PPE, with limited exceptions. (72 Fed. Reg.64341-64440.)   While that rule sets forth the obligation to provide nearly all PPE in the workplace, this rule will create an extra incentive because it will force employers to be in compliance or be faced with multiple violations where they would have on faced single violation in the past. Thus, employers should be aware that should they fail to provide the necessary PPE, they could face substantially increased fines under the new rule, which goes into effect January 12, 2009.
 

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