In December 2022, Ogletree Deakins launched its OSHA Tracker based on analysis of the Occupational Safety and Health Administration’s (OSHA) publicly available inspection and citation data, which dates back to the 1970s. Now, in addition to featuring individual state data and OSHA regional information, the OSHA Tracker has been enhanced with city information.
Workplace violence is a serious concern for California employers in all industries, but the state’s workplace violence prevention regulations are currently applicable only to the healthcare industry. A bill recently introduced in the California Legislature would require the state’s occupational safety and health regulator to broaden the scope of workplace violence prevention regulations.
On February 6, 2023, California’s Occupational Safety and Health Appeals Board held that employers must provide their outdoor workers with drinking water at a location “as close as practicable,” effectively creating a new precedent for interpreting the state’s requirements related to the proximity of drinking water.
On March 3, 2023, a new California state public health officer order regarding COVID-19 was issued with an effective date of March 13, 2023. The new order includes important information for employers doing business in California.
The Occupational Safety and Health Administration (OSHA) has identified violence in healthcare settings as a significant occupational risk, and a new workplace violence standard for the healthcare industry could be on the horizon.
On February 13, 2023, the Occupational Safety and Health Administration (OSHA) announced that U.S. Secretary of Labor Marty Walsh and Assistant Secretary of Labor for Occupational Safety and Health Doug Parker had signed a memorandum giving OSHA new authority to issue certifications supporting applications for U nonimmigrant status and T nonimmigrant status visas.
On February 7, 2023, California Assembly Member Rebecca Bauer-Kahan (D-16) introduced Assembly Bill (AB) No. 521, which calls on the California Division of Occupational Safety and Health (Cal/OSHA) to submit a rulemaking proposal to the Occupational Safety and Health Standards Board that would “require at least one women’s designated restroom for jobsites with two or more required water closets.”
On February 15, 2023, the Occupational Safety and Health Administration (OSHA) withdrew its proposed rule that would have revoked the final approval status of Arizona’s state plan for occupational safety and health.
On February 17, 2023, the Occupational Safety and Health Administration’s (OSHA) Directorate of Whistleblower Protection Programs’ new whistleblower complaint intake pilot program (Directive 23-01 (CPL 02)) went into effect, governing complaints covered by OSHA-administered whistleblower statutes. The directive creates a national pilot program changing OSHA’s intake process for whistleblower complaints.
Three years after issuing its revised Voluntary Protection Programs (VPP) policies and procedures manual, the Occupational Safety and Health Administration (OSHA) has announced that it is seeking public comment on its goal of modernizing the VPP.
OSHA continues to target recordkeeping as a key area of concern, with the agency focused on the need for improvements in employer reporting of injury and illness data and potential changes with regard to how it applies the OSH Act’s six-month statute of limitations when issuing recordkeeping citations.
The Oregon Legislature, in response to concerns that the Oregon Occupational Safety and Health Division (Oregon OSHA) penalties were not sufficient, introduced legislation (Senate Bill (SB) 592) that would significantly increase the amounts of civil penalties for violations and allow Oregon OSHA to conduct in-depth, wall-to-wall inspections under certain circumstances.
The new year began with the Occupational Safety and Health Administration (OSHA) clearly establishing that it is focusing on enforcement in 2023. After announcing that it is expanding its instance-by-instance citation policy and issuing corresponding enforcement memoranda on January 26, 2023, it followed on February 7, 2023, by issuing a new directive. That new directive—CPL 02-01-064—continues OSHA’s Site-Specific Targeting (SST) program.
On January 31, 2022, the United States Court of Appeals for the Third Circuit held in Doe v. Scalia that once the Occupational Safety and Health Administration (OSHA) has completed enforcement proceedings, an employee may not maintain a lawsuit under the Occupational Safety and Health Act of 1970.
The Occupational Safety and Health Administration (OSHA) recently posted a tweet with the following question: “Is your pizza party incentive program unreasonable?” Setting aside the frontal attack on arguably one of the most revered of all cultural experiences in America—the pizza party—questions regarding safety incentive programs are recurring among employers.
On December 15, 2022, the California Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Non-Emergency Regulation to replace the Emergency Temporary Standards (ETS), which were set to end on December 31, 2022.
Workplace violence is a growing concern in California and across the country, as evidenced by numerous recent tragic incidents in the news. These recent incidents may highlight for employers the importance of taking steps to prevent and respond to workplace violence, and they may also leave employers wondering about their obligations under workplace safety laws with regard to workplace violence prevention.
On December 28, 2022, Governor Kathy Hochul signed into law an amendment to Section 2 of the New York Health and Essential Rights Act (NY HERO Act). The amendment, which took effect immediately upon signing, provides that “[a]n employer must recognize within five business days the establishment of a workplace safety committee.”
Late on January 26, 2023, the Occupational Safety and Health Administration (OSHA) issued a press release concerning a significant change in long-standing policy related to instance-by-instance issuance of citations that will become effective in sixty days and radically alter the landscape of certain inspections. The stated purpose of the policy change is “to make [OSHA’s] penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.”
On January 12, 2023, the U.S. Court of Appeals for the Sixth Circuit upheld most of a district court’s injunction blocking the federal contractor vaccine mandate in Kentucky, Ohio, and Tennessee.
This year, as has been the case the past six years, January brings two items from the Occupational Safety and Health Administration (OSHA) that almost all employers will want to keep in mind. One is an adjustment to the penalties OSHA can impose for a violation of the Occupational Safety and Health (OSH) Act and the other is a requirement to post injury and illness records.
New COVID-19 prevention regulations adopted by the California Occupational Safety and Health Standards Board on December 15, 2022, were sent to the Office of Administrative Law (OAL) for approval. The new regulations will not take effect until approved by OAL, which has thirty working days to complete its review.
Anyone who follows professional football is well aware that Buffalo Bills safety Damar Hamlin collapsed on the field during a Monday Night Football game on January 2, 2023. The sight was jarring. Despite the fact that football fans know violent contact is one of the game’s most defining characteristics, the sight of a world-class athlete collapsing and not getting back up was unexpected and downright scary. The health and safety of Damar Hamlin became the priority, and the game took a backseat.
The Occupational Safety and Health Administration’s (OSHA) COVID-19 rulemaking process has been quiet for a while, but recent activity appears to indicate we are now entering the final phase of a permanent COVID-19 standard for healthcare.
On December 30, 2022, a Sacramento County Superior Court judge issued a temporary restraining order blocking the State of California—in particular, the California Department of Industrial Relations—from implementing the provisions of Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act).
Ogletree Deakins’ recently released OSHA Tracker tool allows employers to search and filter Occupational Safety and Health Administration (OSHA) data to identify emerging issues and OSHA enforcement trends. This interactive tool compiles comprehensive OSHA inspection, citation, and penalty data and allows employers to create custom searches and filter by OSHA region, state, industry, or date.
On December 19, 2022, a panel for the U.S. Court of Appeals for the Fifth Circuit affirmed a preliminary injunction blocking enforcement of President Joe Biden’s COVID-19 federal contractor vaccine mandate. The 2-1 panel decision in State of Louisiana v. Biden found that to allow the mandate would result in an “enormous,” “transformative,” and “truly unprecedented” expansion of the powers of the president without clear authorization from Congress.
On December 9, 2022, a federal judge in Montana permanently blocked enforcement in healthcare settings of a first-in-the-nation law that had prohibited discrimination in employment and the provision of services based on vaccination status—including vaccination against COVID-19—finding the law is unconstitutional and preempted by federal law.
On December 15, 2022, the California Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Non-Emergency Regulation, modifying Title 8 of the General Industry Safety Orders. The regulation passed, 6–1, in a near-unanimous vote of the seven-member Standards Board.
Analysis of the Occupational Safety and Health Administration’s (OSHA) publicly available inspection and citation data, which dates back to the 1970s, can help employers forecast and spot enforcement trends and changes, identify new and emerging issues, and correlate information to make unique connections that may not be readily apparent. To assist employers, Ogletree Deakins has developed the OSHA Tracker, a purpose-built resource designed to provide clients and consumers with easy-to-use search tools and filters to convert OSHA data into more digestible and useful information.
