OSHA

We all know that thanks to the United States Supreme Court’s recent decision invalidating the COVID-19 vaccination mandate for large employers previously issued by the Occupational Health and Safety Administration (“OSHA”) that employers with 100 or more employees no longer need to require employee vaccinations. But what is next for OSHA in this area in addressing COVID-19 workplace issues?

For one thing, OSHA has not completely given up on having a vaccination mandate. The agency is still contemplating issuing such a requirement through its usual rulemaking process. This time around, OSHA tried to short-circuit that process by using its emergency rulemaking authority that allows it to avoid the usual lengthy rulemaking process for significant workplace hazards that require immediate attention. But would that prove more successful and pass legal scrutiny? Hard to tell, but the Supreme Court decision poses a tough obstacle since the majority of the Court concluded that Congress did not grant OSHA authority to issue broad requirements to address issues that are more akin to public health matters and not direct workplace hazards.

Another available tactic for OSHA left open by the court’s decision is to issue a vaccination mandate limited to very specific industries where COVID-19 could clearly be shown to pose more of a particular workplace threat, such as where employees work closely in proximity to one another, such as factory and industrial settings. We know meatpacking plants were a festering ground for COVID-19 infections. One could see OSHA issuing rules there in such industries to increase employee vaccination rates. This is one possible area where even the Court’s decision itself recognized OSHA’s authority to act, so maybe the agency moves forward to accept that invitation to regulate workplaces there.

Finally, OSHA still has its investigatory authority to indirectly force employers to increase steps in the workplace to promote safety, including maybe even possible vaccinations. The OSHA law’s General Duties Clause requires employers to provide a safe workplace for its employees, and OSHA could invoke this legal duty to expect employers to actively promote workplace COVID-19 safety by taking steps such as requiring masks, testing, and even vaccination requirements given the particular workplace circumstances. By crafting specific requirements for particular workplaces, OSHA could claim that it is meeting the Court’s directive of tailoring specific relief to the precise workplace and not blanketly regulating a general public health issue.

So, the moral of this story is stay tuned. The pandemic isn’t over, and neither will be OSHA’s efforts to find a way to promote broader vaccination rates in the country’s workforce to facilitate greater workplace safety.

Does your organization require employees to undergo drug and alcohol testing automatically in every instance where there has been a workplace accident?  If so, new regulations from the Occupational Safety and Health Administration (“OSHA”) will greatly impact upon the continuation of such practices in your workplace.

In May, 2016, OSHA published regulations that ostensibly are designed to implement new rules barring discrimination and enhancing injury/illness reporting. On their face, these new rules appear to merely implement stricter rules against employee retaliation/discrimination for reporting workplace injuries. However, OSHA is broadly interpreting such regulations to prohibit all mandatory automatic post–accident testing, concluding that such policies discriminate against employees on the basis of injury and accident reporting. Because of this belief, OSHA is recommending that only narrowly tailored drug testing policies be used-ones expressly linked to situations where employee drug use is likely to have contributed to the happening of the incident and where the desired testing can accurately test for that impairment. Why has OSHA adopted this view?  OSHA believes that stringent testing polices deter injury reporting and therefore discriminate/retaliate against persons who have suffered workplace incidents.

So, what kind of drug testing would be inappropriate under these new regulations?  OSHA states:

For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.

However, employers which conduct automatic post-accident drug testing to comply with other federal and state legal requirements (such as Department of Transportation regulations) can continue with such testing because the motive for same in the eyes of OSHA is not retaliatory.

In light of these new regulations, which went into effect on August 10, 2016, employers must immediately review their current drug testing policies to ensure compliance with these new rules and regulations. Nevertheless, it is important to understand that these new regulations do not themselves bar post-incident drug testing-they merely require that the testing be based upon some form of reasonable suspicion that drug use contributed to the incident.

Moreover, you should also be aware that lawsuits are now pending challenging OSHA’s broad conclusions about the adverse effects of all mandatory post-accident testing on the reporting of workplace injuries and accidents. Nevertheless, in the meantime, employers must still satisfy these new legal restrictions, and with the assistance of knowledgable legal counsel, employers can effectively craft and administer compliant post-accident drug and alcohol testing polices despite these new regulations.

New Jersey employers are required to conform to safety and health standards issued by the Occupational Safety and Health Administration (“OSHA”) of the U.S. Department of Labor.  They are also required to comply with the so-called “General Duty Clause”, which is found at §5(a) (1) of the OSH Act (“the Act”).  The crux of the obligation imposed by the General Duty Clause is maintain the workplace free from “recognized hazards.”

OSHA defines the phrase “workplace violence” broadly to mean “violence or the threat of violence”.  Applying this definition, OSHA estimates that there are approximately 2,000,000 incidents of workplace violence in America per year.

The current yearly average of workplace fatalities in the U.S.A. is approximately 4,600, of which about nine or ten percent are homicides.  Homicide is the fourth highest cause of workplace fatalities.

Given the information in the two preceding paragraphs, it is unsurprising that OSHA has been taking a far greater interest in the topic of workplace violence.   This interest notwithstanding, OSHA has not promulgated a standard to address this issue.  Rather, it has: (1) issued a Factsheet with suggestions how to reduce the risk of workplace violence; (2) included a workplace violence section in its Field Operations Manual, which provides guidance to its personnel who conduct inspections of workplaces; (3) issued Guidelines for certain industries such as health care and social service; and (4) issued approximately 23 General Duty Clause citations to employers whose violence avoidance policies and practices, if any, were perceived as inadequate (permitting the existence of one or more alleged recognized hazards).

A New Jersey employer has been cited for a workplace violence General Duty Clause violation.  Specifically, health care workers at Bergen Regional Medical Center in Paramus, one of the nation’s largest hospitals with over 1000 beds, in a three month period experienced eight separate incidents including being bit, punched, kicked and threatened by patients.  This lead to a worker complaint to OSHA, an inspection and the issuance of a §5 (a) (1) citation.  This matter was informally resolved without a hearing.

That was not the outcome in a subsequent General Duty Clause workplace violence case, which is currently pending before the OSA Review Commission (“Commission”).   In Secretary of Labor v. Integra Health Management, Inc., the employer had professional social workers conduct mental and physical health assessments on behalf of insurers at the patients’ individual residences.  Tragically, one of the team of social workers was stabbed to death at a patient’s home.  The patient had a history of violent behavior and mental illness.

Intregra Health contested the General Duty Clause citation and the matter was tried in a hearing before an Administrative Law Judge (“ALJ’) for the Commission.  Thereafter, he found that OSHA had proven a §5(a) (1) violation.  In so doing, the ALJ concluded that the “workplace” could include a location over which the employer had no control.  Intrega Health asked the Commission to review the ALJ decision.

On September 18, 2015, the Commission took the highly unusual, but not unprecedented, step of inviting non-parties to file Amicus Curiae (friend of the Court) briefs.  The importance of this case is shown by those who in fact filed such briefs, including the U.S. Chamber of Commerce and the Service Employees International Union (“SEIU”).  Impressive arguments are included in the Amicus and party briefs.

A material part of the briefs, both party and Amicus focused on the unique factual context of where the workplace violence occurred.  Employer briefs point out that face-to-face in home interactions are critical to Intregra’s business and Integra does not control the patients’ residences.  They also stress that the Act itself is focused on conditions inherent in a workplace environment where an employer has practical means to minimize and abate a hazard.

Briefs in support of the ALJ decision point out that there is a wealth of learned writing preceding the issuance of OSHA’s guidelines that confirm the health risk to workers from violence and advocate for the establishment of legal requirements to mitigate this risk.  Indeed, Intregra used one of these learned sources as a basis to train its’ personnel.  Seen in this light, those supporting the OAL decision, suggest that OSHA’s guidelines simply mimic preexisting learned writing, and, thus, Courts should defer to OSHA’s guidelines.

The Integra case has been pending for almost a year.  The date for Commission decision is not known.  Regardless of the outcome of the Commission decision, further appeal is likely, possibly up to the Supreme Court. As this is the first fully litigated OSHA workplace violence case, it may well set national precedent on this topic.

Mentioned above is that OSHA has issued a Factsheet on Workplace Violence. This is a short and helpful primer on the subject and a valuable short resource to employer representatives, including safety and health and human resource professionals, as well as attorneys.   The factsheet offers some common sense suggestions; the outcome of Integra could convert these suggestions to legal obligations.