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OSHA

OSHA Joint Employer Liability!

OSHA Joint Employer Liability!

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in OSHA on Thursday, September 20, 2018.

The Occupational Safety and Health Administration (OSHA) has just reminded Temporary Staffing Agencies and their clients (i.e. the Host Employer) that they are jointly liable and responsible for a Temporary Employee’s safety and health in two (2) new Guidance Documents relating to respiratory protection, noise exposure and hearing conservation.

Nearly two (2) years after its last Bulletin Issuance, Occupational Safety and Health has advised in Temporary Working Initiative Bulletin No. 8 – Respiratory Protection and Initiative Bulletin No. 9 – Noise Exposure and Hearing Conservation that there is a shared responsibility between Host Employers and Temporary Staffing Agencies. Under Bulletin No. 8, OSHA advises both the Host Employer and Staffing Agency that they are “jointly responsible to ensure that Workers wear appropriate respiratory equipment when required.” Both the Host Employer and the Staffing Agency are jointly responsible to establish that the Employee is properly protected in accordance with Standard No. 8 and neither the Host Employer nor the Staffing Agency can require that the Worker provide or pay for their own respiratory protection if it is required.

Under No. 9, the Host Employer and the Temporary Staffing Agency are jointly responsible for assuring that “Workers receive protection from any hazardous noise levels when it is required under any established OSHA standard.” Neither the Host Employer nor the Staffing Agency can require the Temporary Workers to provide or pay for their own hearing protection devices, nor require that Workers purchase such devices as a condition of employment. In addition, Temporary Employees must be paid for any time spent receiving their audiograms and audiograms must be at no cost to the Employee.

It should be understood that, while OSHA’s view that both the Host Employers and the Staffing Agencies are jointly responsible for the Temporary Workers’ safety and health, OSHA also has taken the position that in fulfilling this shared responsibility, there may be coordination between the Host Employer and the Staffing Agency with regard to fulfilling responsibilities under Nos. 8 and 9 above. While a Host Employer may have more specific knowledge about hazards associated with its worksite, the Staffing Agency also has a generalized safety responsibility for its Employees. Therefore, OSHA would allow the Host Employer and Staffing Agency to divide training responsibilities based on their respective knowledge of the hazards associated with the worksite. Host Employers would have the primary responsibility for training and communication regarding site-specific hazards and Staffing Agencies would be responsible for making reasonable inquiries to verify that the Temporary Workers’ safety is established.

It is extremely important for both the Host Employer and the Temporary Staffing Agency to understanding their responsibilities under these new regulations.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

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Categories
OSHA

New OSHA Reporting Regulations Become Effective

New OSHA Reporting Regulations Become Effective

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in OSHA on Thursday, January 12, 2017.

In a previous issue, we discussed a new OSHA reporting regulation that was initially scheduled to take effect on August 10, 2016, but was pushed back to November 1, 2016, and then delayed again until December 1, 2016 as a result of pending litigation by a number of trade associations, which sought to enjoin the regulation as it related to post-accident drug testing programs. On November 28, 2016, the Texas court refused to issue the injunction and the new rule became effective on December 1, 2016. Texo ABC/AGC Inc. v. Perez, Case No. 3:16-cv-01998 (N.D. Tex. 2016).

As a result of the court’s action, the new regulation is now in effect. Employers must therefore begin submitting their annual illness and injury data electronically, depending on their size, in accordance with a two year phase-in schedule. Under the new regulation, employers must also establish a “reasonable procedure” for employees to promptly and accurately report injuries, but must do so in a way that does not deter or discourage them from accurately reporting an injury. The rule does not prescribe specific procedures, but OSHA suggests that employers review their reporting requirements for elements that might deter employees from reporting injuries (e.g., requiring the immediate reporting of injuries that may develop over time or initially did not appear serious.)

Under the anti-retaliation provisions of the new rule, employers must inform employees of their right to report injuries free from retaliation, which can be satisfied by simply posting the current OSHA Poster. Employers are also prohibited from taking adverse action against employees for reporting work-related illnesses and injuries, which would include any actions that would discourage a reasonable employee from reporting an injury, such as discharging, demoting or denying bonuses to employees who report injuries; assigning “points” that lead to negative consequences; and, requiring employees who report injuries to take a drug test without a legitimate business reason (i.e., suspicion that drug/alcohol use may have contributed to the injury).

It should be noted that the rule does not prohibit employers from disciplining employees who suffer an injury, where the injury is the result of safety violation, for example. The rule only prohibits employers from retaliating against employees for having reported an injury. Likewise, the rule does not prohibit all post-accident drug testing, only blanket testing of any employee who reports an injury, regardless of cause. Post-accident testing should therefore be limited to those situations in which there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.

Lastly, the new regulation prohibits employers from using safety incentive programs in a way that penalizes employees for reporting injuries, which would include denying a benefit to an employee who reports an injury. Under the new regulations, bonus programs that reward employees for “X days without a reported injury” would be prohibited, because they discourage and penalize employees who report injuries. According to OSHA, incentive programs that encourage safe work practices and promote worker participation safety-related activities are permissible, such as rewarding employees for utilizing safety equipment.

Given the slew of new regulations issued in the waning months of the Obama administration (and this is one of them), there is currently discussion of legislation that would wipe them off the books through congressional action in the early days of a Trump presidency. That remains to be seen, however. For now, compliance is required.

If you would like more information, or have questions about the new regulation and/or how it may affect your post-accident drug testing or safety incentive programs, contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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