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

According to a press release issued by Senator Mike Enzi (R-WY), the lead sponsor of the bill in the Senate, since the VPP’s inception in 1982, it has grown to include more than 2,200 worksites and more than 921,000 employees. The release also cites a 2007 report noting that the program has saved the government more than $59 million by avoiding injuries, private sector VPP participants have saved more than $300 million over this period, and that on average, participating workplaces experience an illness and injury rate that is 50 percent below that maintained by other workplaces in their respective industries.

Many in the business community have expressed concern that OSHA is putting the VPP on the backburner by allegedly diverting the agency’s funds to enforcement instead of prevention efforts. The bill would authorize Congress to grant the agency “such sums as may be necessary” to maintain the program. In addition, the legislation would direct the Secretary of Labor to “establish and implement, by regulation, a program to increase participation by small businesses” in the VPP.

According to Senator Enzi, “the Voluntary Protection Programs have encouraged a culture of health and safety in the workplace that saved the government and private sector millions of dollars by avoiding injuries and illnesses.” Senator Mary Landrieu (D-LA), a co-sponsor of the bill, added that; “the VPP program is a great example of how the right public-private partnership can succeed in reducing accidents at work, but these partnerships are not a replacement for stricter mandatory workplace safety guidelines, especially in dangerous occupations. Rep. Tom Petri (R-WI), the lead sponsor of the bill in House, commented that “there are times when OSHA has to be heavy handed, but most employers want to run safe workplaces. There is a lot to be gained by having OSHA recognize employers who have demonstrated a commitment to workplace safety. When OSHA does that, it creates an incentive for other employers to follow suit - and that improves safety and saves money on enforcement costs at the same time.” Another sponsor of the bill, Rep. Gene Green (D-TX) stated that “the Voluntary Protection Program is one of the few programs that has achieved unified support from both union and non-unionized labor, small and large businesses, and government.”

Photo credit: MBPHOTO, INC.

Jordan Barab, Deputy Assistant Secretary of Labor for OSHA, testified (pdf) that the Administration “strongly supports” PAWA’s whistleblower protections, which would strengthen the OSH Act’s anti-retaliation provision by “including the full range of procedures and remedies available under the more modern statutes and by codifying certain provisions, such as exemplary damages and the right to refuse work that could result in serious injury or illness, which have been available but not expressly authorized by current statute.” The amendments would also increase the existing 30-day deadline for filing a retaliation complaint to 180 days. Barab also praised PAWA’s adoption of the “contributing factor” test for determining when illegal retaliation has occurred. This test, Barab explained, is less stringent than the current “motivating factor” test OSHA uses to evaluate the employer’s decision to take adverse action against the employee following whistleblower activity. The new provisions would also allow both the DOL and the complainant to file a civil action for enforcement of an order providing relief for retaliation violations in federal court.

In addition to PAWA’s current provisions, Barab suggested further amending the OSH Act to provide for assessment of civil penalties against employers that violate the whistleblower provisions. Barab called for subjecting these employers to “civil penalties of not less than $10,000 and not more than $100,000 for each occurrence of a violation.”

Other witnesses, however, questioned (pdf) the need for these enhanced whistleblower provisions, which they believed do not directly relate to improving worker safety, but rather enhance a complainant’s position during the litigation process. In addition, the provision that would prohibit the discharge or any other form of discrimination against an employee “for refusing to perform the employee’s duties if the employee 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” is written too broadly, according to an employment attorney. Under PAWA, a complainant seeking protection under this provision must simply conclude, as a “reasonable person” would, that there is “bona fide danger of a serious injury, or serious impairment of health, resulting from the circumstances.” Under current OSH regulations already in place to protect against worker discrimination, an employee who refuses to work must demonstrate that he or she has refused to work in “good faith,” and that a reasonable person would agree that there exists “a real danger of death or serious injury.” In addition, employees must take certain steps to place the employer on notice of any workplace danger before refusing to work. According to the witness, “PAWA’s ‘reasonable apprehension’ standard and its failure to incorporate the employer protections contained in the OSHA regulations have the potential to encourage excessive litigation and false claims,” in addition to unnecessary work stoppages.

With respect to Section 306 of PAWA, which address victim’s rights, a witness testifying (pdf) on behalf of the U.S. Chamber of Commerce emphasized that “further clarification of the rights, duties and responsibilities of the entities covered under discussion draft Section 306, which purports to address Victim’s Rights, is necessary to truly advance the interests of safety and health in the workplace.” For instance, the witness claimed, a “representative of the victim” described in the legislation should be defined so as not to include a private attorney who is involved in third-party litigation related to the matter.

A complete list of witnesses and their testimony can be found here.

Meanwhile, Sen. Mike Enzi (R-WY) has introduced a bill – the Voluntary Protection Program Act (S. 3257) – that would effectively reauthorize OSHA’s Voluntary Protection Programs (VPP) initiative, and expand it to include more small businesses. As stated in an OSHA fact sheet (pdf) on the VPP, businesses partner with OSHA to “develop and implement systems to effectively identify, evaluate, prevent, and control occupational hazards to prevent employee injuries and illnesses.” During a recent web chat, OSHA officials noted that due to limited resources, the agency plans to shift its focus from VPP to enforcement efforts. To that end, less money was requested for VPP in OSHA’s 2011 proposed budget. To restore the necessary funding to carry out VPP, Sen. Enzi’s bill would provide the DOL with “such sums as may be necessary for fiscal year 2010 and each succeeding fiscal year.”

Photo credit:  Lkmorlan

In terms of enforcement efforts, OSHA Deputy Assistant Secretary Rich Fairfax explained that for FY 2010, the agency is in the process of staffing and training 110 new compliance workers, which will translate into more than 40,000 inspections in the coming year. In addition, OSHA’s strategic plan “has a strong emphasis in industrial hygiene. So our health inspectors will be focusing more on industrial hygiene issues, such as noise and hearing loss.”

Director of Cooperative and State Programs Steve Witt explained that due to limited resources, the agency will shift its focus from voluntary protection programs (VPP) to enforcement efforts. With respect to employer fines, Deputy Assistant Secretary Fairfax stated that OSHA intends to change its penalty calculation method, which will result in higher penalties.

In terms of ergonomic issues, Barab mentioned that the agency plans to add a musculoskeletal disorder column to the OSHA log next year, and we will be increasing its enforcement activities addressing ergonomic issues using the general duty clause. According to Michaels:

until recently, enforcement around ergonomic hazards languished. We recognize that thousands of workers annually suffer from musculoskeletal conditions associated with ergonomic hazards and OSHA must do more. OSHA's field staff will be looking for ergonomic hazards in their inspections and we will be providing them with the support and back-up they need to enforce under the general duty clause. In addition, we will be examining employer logs to see if MSDs are accurately reported.

OSHA officials also mentioned during the chat that the agency is working on ways to streamline the rulemaking process.

Photo credit: MBPHOTO, INC.