Multi-employer worksite doctrine applies in Fifth Circuit
The U.S. Court of Appeals for the Fifth Circuit has overturned a long-standing precedent in that circuit, now granting deference to OSHA and allowing OSHA’s use of its multi-employer worksite doctrine to enforce safety regulations.
OSHA regularly issues citations to multiple employers at a work location for the same accident or conditions violating a safety standard based upon a 1999 OSHA Directive, entitled “Multi-Employer Citation Policy, OSHA Directive CPL 2-0.124.” Under this policy, OSHA asserts that “[o]n multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard” with the belief that such a policy does not impose additional duties on employers not already established in the Occupational Safety and Health Act of 1970 (OSH Act). With the recent Fifth Circuit decision, all federal appellate courts now agree that OSHA’s multi-employer worksite doctrine is legally supported under the OSH Act.
The November 26, 2018 decision in Hensel Phelps reexamines the court’s previous holding that both the OSH Act and OSHA regulations only protect an employer’s own employees. Acosta v. Hensel Phelps Constr. Co., No. 17-60543, 2018 WL 6168044 (5th Cir. Nov. 26, 2018). The precedent and its supporting case law date back to the late 1970s through the early 1980s, which the court acknowledges was before the U.S. Supreme Court established the two-step process now accepted as the proper standard when examining an executive’s agency interpretation of their own regulations in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). “Chevron deference” requires courts to determine whether Congress has spoken directly to the question at issue and if not, to determine if the agency’s position is reasonable, giving broad discretion to agencies. Id.
The Hensel Phelps decision can be accessed at law.justia.com.
The Fifth Circuit applied Chevron deference to OSHA’s interpretation of the OSH Act as imposing two separate duties: 1) a general duty to its own employees; and 2) more broadly, a duty to comply with the OSH Act’s safety standards. Hensel Phelps at *9. Under Chevron deference, the court found OSHA’s interpretation rational, stating that project supervision comes with the burden of protecting against hazardous conditions regardless of whether the employer’s own employees were exposed. Id. at *15-16. The decision aligns the Fifth Circuit with the rest of the country as all other Circuit Courts have already issued similar judgments. Thus, OSHA will continue to cite employers for accidents that occur at their facilities as creating, controlling, or correcting employers, even in instances where none of their employees were exposed to a hazard.
Post-incident drug testing and incentive program clarification
On October 11, 2018, OSHA issued a memorandum clarifying the agency’s position that 29 C.F.R. § 1904.35(b)(1)(iv) prohibits neither workplace safety incentive programs nor post-incident drug testing. Memorandum from Kim Stille, OSHA Acting Director, Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv) (Oct. 11, 2018).
Section 1904.35(b)(1)(iv) prohibits employers from retaliating against employees for work-related injuries or illnesses: “[y]ou must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” With this memorandum, OSHA sought to emphasize that it believes many employers justifiably implement safety incentive programs and post-incident drug testing in an effort to promote workplace health and safety, rather than as a means of discouraging reporting by employees.
This clarification was likely prompted by disagreement between industry and regulators following the 2016 issuance of the Injury and Illness Reporting Rule revisions, including the new non-discrimination requirement. The preamble to the revised rule and several guidance documents issued by OSHA around the same time seemed to indicate that denying a benefit to an employee under an incentive program or drug testing of an employee involved in a safety incident might be viewed as retaliation in violation of the regulation in some instances.
OSHA now states that “[a]ction taken under a safety incentive program or post-incident drug testing policy would only violate [the provision] if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” OSHA goes on to clarify that most workplace drug testing is permissible under Section 1904.35(b)(1)(iv), including random drug testing and drug testing to evaluate the root cause of a workplace incident.
It is important to note, however, OSHA clarified that if an employer chooses to conduct workplace drug testing to investigate an incident, that employer should test all employees whose conduct could have influenced the incident, not just the reporting employee.
OSHA also states that this memorandum supersedes any prior conflicting or inconsistent interpretive documents.
A copy of OSHA’s Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 90.35(b)(1)(iv) can be found at osha.gov.
Operator qualification for cranes and derricks in construction
On November 9, 2018, OSHA issued a final rule – Cranes and Derricks in Construction: Operator Qualification. 83 Fed. Reg. 56198. With this rule, OSHA intended to:
- Clarify employers’ duty to ensure and document the competency of crane operators through training, certification or licensing, and evaluation;
- Establish minimum requirements for determining such competency; and
- No longer require employers to provide different levels of certification based on the equipment’s rated lifting capacity.
Under the new requirements, OSHA clarifies that crane-operator certification alone may not provide operators sufficient knowledge and skill to safely operate cranes in all circumstances. Thus, even if an operator presents proof of certification, employers maintain a duty to ensure and document that they are competent to perform the particular task since the employer typically has additional information regarding conditions that may not be replicated by standardized tests.
The rule also establishes minimum requirements for operator qualification, and the operator must complete three steps before the employer allows the operator to work without continuous supervision. Each operator must: “(1) be trained to do the crane activities that will be performed, (2) be certified/licensed in accordance with [OSHA rules], and (3) be evaluated on his or her competence to safely operate the equipment that will be used.”
Additionally, the final rule alters crane-operator certification so that it may now be based on either equipment “type” or “type and capacity.” This change removes the requirement for employers to certify operators based on the specific equipment type and rated lifting capacity they were trained on. Operators expressed concerns that narrow certifications were unnecessarily restrictive and would require significant changes to certification practices. Operators also argued that certification by capacity is not a meaningful component of operator testing since load does not alter equipment function. In making this alteration, OSHA recognized that the former rule provided a heavy regulatory burden without any corresponding additional safety benefit.
The final Cranes and Derricks in Construction: Operator Qualification rule can be found at federalregister.gov.
Update to OSHA’s National Emphasis Program on trenching and excavation safety
On October 1, 2018, OSHA released an updated 1985 NEP focused on preventing trenching and excavation collapses “in response to a recent spike in trenching fatalities.” The updated NEP indicates OSHA determined “these worksites continue to warrant an increased enforcement presence.” OSHA Directive CPL-02-00-161.
In addition to existing mandates to inspect any observed open trench or excavation, the updates increase education and enforcement efforts, requiring each OSHA area office to develop outreach programs. The NEP further establishes a national reporting system for recording all OSHA trenching and excavation inspections. An initial three-month education and outreach period will be followed by enforcement activities beginning in January 2019.
Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, stated that “[r]emoving workers from and helping workers identify trenching hazards is critical . . . OSHA will concentrate the full force of enforcement and compliance assistance resources to help ensure that employers are addressing these serious hazards.”
The Directive can be found at osha.gov. OSHA’s Trenching and Excavation page, including links to additional resources for keeping workers safe from trenching-related hazards, can be found at osha.gov.
Client Alert 2018-237
