The Occupational Safety and Health Administration (OSHA) has increased the minimum and maximum civil monetary penalties (CMPs) for workplace safety violations, as required by the Federal Civil Penalties Inflation Adjustment Act.

To maintain the deterrent effect of CMPs and to promote compliance with the law, the Federal Civil Penalties Inflation Adjustment Act requires an annual adjustment of CMPs to account for inflation. Each year, the Office of Management and Budget (OMB) calculates an inflation multiplier, and all federal agencies are required to apply that multiplier to their CMP structures by January 15. For 2024, the OMB has calculated a multiplier of 1.03241 to reflect the cost-of-living increase over the past 12 months.

OSHA confirmed the cost-of-living increase in a final rule published in the Federal Register on January 11, 2023. The final rule is effective on January 15, 2024, and will apply to all citations issued by OSHA on or after January 16, 2024. The new penalty structure also applies to open inspections that commenced before January 16, 2024. The new CMP structure is detailed in the table below.

* For a repeated other-than-serious violation that otherwise would have no initial penalty, a  Gravity Based Penalty (GBP) of $460 shall be proposed for the first repeated violation, $1,152 for the second repeated violation, and $2,304 for a third repetition.
**This amount reflects the actual minimum penalty with all penalty reductions which rectifies error in the previous years’ serious minimum penalty posted.

In several U.S. states, state agencies enforce the Occupational Safety and Health Act rather than OSHA, and penalties for workplace safety violations may differ in those states.

The post OSHA Increases Penalties for Workplace Health and Safety Violations appeared first on HIPAA Journal.

The form you use to submit an OSHA complaint is known as OSHA 7, which can be completed and submitted online, or printed out and mailed, emailed, or faxed to OSHA.

• What is Considered an OSHA Violation?
• Why Complain to OSHA?
• How Do You Submit an OSHA Complaint?
• How Do You Complete OSHA Form 7?
• What Happens after an OSHA Complaint is Submitted?
• What Happens If My Employer Retaliates?

What is Considered an OSHA Violation?

An OSHA violation is considered to occur when an employer fails to comply with an applicable OSHA safety or health standard, or violates any other OSHA compliance standard. Consequently, it is not necessary for an accident to have occurred in the workplace, or for an employee to have sustained an injury or illness before it is possible to submit an OSHA complaint.

OSHA standard §1903.11 allows employees or representatives of employees to submit an OSHA complaint if it is believed that an employer has violated OSHA and if the OSHA violation – whether a willing or unknowing violation – threatens the safety or health of employees. Complaints to OSHA can be made online, in writing, by phone, or in person at an OSHA Area Office.

Why Complain to OSHA?

If there is a risk to safety or health in the workplace, it is not mandatory that a complaint is submitted to OSHA. Sometimes speaking with an employer or union representative will be enough for the risk to be removed or mitigated. However, there are occasions when concerns about safety or health in the workplace are not listened to by management or employers.

In such circumstances, OSHA has the authority to speak with an employer or conduct an on-site inspection to confirm the presence of a workplace safety or health issue and instruct the employer to resolve the issue. If the employer fails to resolve the issue within the allowed period of time, OSHA has the authority to issue a fine or refer the case for criminal prosecution.

How Do You Submit an OSHA Complaint?

You can submit an OSHA complaint via an online form (OSHA 7), which can be submitted through the OSHA website or printed out as a PDF and mailed, emailed, or faxed to OSHA. You can also discuss your concerns with an OSHA representative by phone or in person before making a complaint if you have any questions about the complaints process or whistleblower protections.

It is important to be aware that OSHA will not always conduct an onsite inspection if a complaint is made by phone or in person. In order for an onsite inspection to take place, at least one of the following eight criteria:

1. A written, signed complaint by a current employee or employee representative with enough detail to enable OSHA to determine that a violation or danger likely exists that threatens physical harm or that an imminent danger exists
2. An allegation that physical harm has occurred as a result of the hazard and that it still exists
3. A report of an imminent danger
4. A complaint about a company in an industry covered by one of OSHA’s local or national emphasis programs or a hazard targeted by one of these programs
5. Inadequate response from an employer who has received information on the hazard through a phone/fax investigation
6. A complaint against an employer with a past history of egregious, willful, or failure-to-abate OSHA citations within the past three years
7. Referral from a whistleblower investigator
8. Complaint at a facility scheduled for or already undergoing an OSHA inspection.

How Do You Complete OSHA Form 7?

You complete OSHA Form 7 by entering the name, physical address, and contact information for the business you are making a complaint about. You then have to indicate the type of business so OSHA can determine whether it meets #4 in the above list, and describe the nature of the hazard. It is also important to note the number of employees potentially affected by the hazard and whether the hazard has been brought to the attention of the employer or another government agency.

Thereafter, the form requests your contact details, whether you wish to have your name withheld from the employer, and whether you are complaining on your own behalf or as an employee’s representative. It is important to be as accurate and as truthful as possible when completing OSHA Form 7 because false statements and misrepresentations are violations of the OSH Act which carry a maximum penalty of $10,000 and/or six months imprisonment.

What Happens after an OSHA Complaint is Submitted?

What happens after an OSHA complaint is submitted is that the complaint is evaluated and prioritized. The process for evaluating and prioritizing complaints depends on the nature of the complaint (i.e., imminent danger) and the number of employees potentially at risk from the hazard. In most cases, the employer or management officer responsible for safety will be contacted by phone and asked to respond within five days with details of the corrective action taken.

If the response is adequate, no inspection will be scheduled and the complainant will receive a written explanation. If the response is not adequate, and the complaint meets at least one of the eight criteria listed above, OSHA will schedule an inspection according to an established prioritization system. In the event of an imminent danger threat in which an employer’s response is not adequate, OSHA has the authority to ask a federal court for an immediate cessation of activities.

What Happens If My Employer Retaliates?

When you submit an OSHA complaint, you are protected against retaliation or discrimination by your employer under OSHA standard §1977.3. If an employer does retaliate or discriminate against you, it is possible to submit a whistleblower complaint provided the following four criteria are met:

• The employee engaged in an activity protected by the whistleblower protection law.
• The employer knew or suspected the employee engaged in the protected activity.
• The employer took an adverse action against the employee.
• The employee’s protected activity motivated or contributed to the adverse action.

Similar to when you submit an OSHA complaint about a workplace hazard, whistleblower complaints can be made online using the OSHA Whistleblower Complaint Form, in writing (i.e., by mail or email) or orally (i.e., by phone or in person). However, whistleblower complaints cannot be anonymous and complaints have to be submitted within thirty days of the alleged retaliation or discrimination.

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The post What Form Do You Use to Submit an OSHA Complaint? appeared first on HIPAA Journal.

OSHA bloodborne pathogens training is required prior to an employee being assigned a task in which there may be occupational exposure to blood or another potentially infectious material. Thereafter, training is required at least annually and whenever there is a material change that affects the employee’s potential exposure.

Like many standards in Subpart Z of the OSHA standards (Toxic and Hazardous Substances), the OSHA bloodborne pathogens standard is extremely comprehensive. The standard (§1910.1030) covers every type of engineering control to mitigate the threat of an employee acquiring an infection from contact with blood, other bodily fluids (including saliva), human tissues, or medical equipment.

How to Comply with the Bloodborne Pathogens Standard

To comply with the bloodborne pathogens standard, employers must compile a list of all job classifications in which some or all employees potentially have occupational exposure to bloodborne pathogens. They must also list all tasks and procedures in those job classifications, and develop engineering controls and work practices to eliminate or mitigate employee exposure.

The engineering controls should include hand washing/skin flushing facilities, sharps disposal units, and personal protective equipment (i.e., gloves) where considered necessary. The standard also requires employers to prohibit eating, drinking, smoking, applying cosmetics or lip balm, and handling contact lenses in work areas where there is a likelihood of occupational exposure.

Further requirements of the bloodborne pathogens standard include repairing or replacing damaged equipment, washing or disposing of personal protective equipment, and housekeeping controls to ensure spills, splashes, and spattering of hazardous substances are immediately contained and cleaned up by members of the workforce who have received OSHA bloodborne pathogen training.

What does OSHA Bloodborne Pathogens Training Consist Of?

OSHA bloodborne pathogens training consists of training members of the workforce on the epidemiology and symptoms of bloodborne diseases and how they are transmitted from patient to provider. Thereafter, training must include information about the engineering controls and work practices developed by the employee to comply with OSHA. For example:

• Perform tasks and procedures safely
• Isolate or remove potential hazards
• Use sharps disposal containers
• Use cleaning and disinfecting equipment
• Correctly apply gloves, masks, and eye protection
• Properly wash off or flush contact with fluids
• Safely handle and dispose of bloodborne pathogens
• Report a spill, splash, or spatter
• Clean a spill, splash, or spatter.

There may be additional training requirements depending on the manner in which members of the workforce are exposed to infectious materials. For example, if a task includes patient handling, ergonomics training must be provided under the OSHA General Duty clause to mitigate the risks of musculoskeletal disorders and other physical injuries.

How Often is OSHA Bloodborne Pathogens Training Required?

OSHA bloodborne pathogens training is required prior to an employee being assigned a task in which there may be occupational exposure to blood or another potentially infectious material. Subject to state-approved OSHA Plans with more stringent requirements, refresher training is required at least annually or whenever there is a material change that affects employees’ potential exposure.

With regards to material changes, OSHA bloodborne pathogens training must be provided even if the procedure for carrying out a task is modified or if the coding of a hazard is amended. Training must also be provided when a member of the workforce progresses from (for example) handling non-infectious human pathogens to handling infectious human pathogens.

With regards to the provision of OSHA bloodborne pathogens training when training of a similar nature has already been provided, it is important to note OSHA has stated employees must receive OSHA bloodborne pathogens training regardless of prior education or training, but the standard allows employers to tailor training to each employee’s background and responsibilities.

If after reviewing the standard, you have questions about OSHA bloodborne pathogen training or how often it is required, you should seek professional compliance advice.

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The OSHA Emergency Action Plan requirements are that every qualifying employer must develop a Plan that meets minimum elements and must provide training on the Plan to key personnel. Qualifying employers must also implement and maintain an employee alarm system to alert employees to emergencies.

The OSHA Emergency Action Plan Requirements

The OSHA Emergency Action Plan requirements (as per §1910.38) are that qualifying employers must develop a plan that includes the following minimum elements:

• The procedures for reporting a fire or other emergency.
• The procedures for emergency evacuation, including type of evacuation and exit route assignments.
• The procedures to be followed by employees who remain to operate critical plant operations before they evacuate.
• The procedures to account for all employees after evacuation.
• The procedures to be followed by employees performing rescue or medical duties.
• The name or job title of every employee who may be contacted by employees who need more information about the plan or an explanation of their duties under the plan.

The Plan must be written and kept in the workplace for employees to review unless an employer has 10 or fewer employees, in which case the plan can be communicated verbally. Employers must also “review” the Plan with each employee at the start of their employment, whenever the employee’s responsibilities change, or whenever the plan is changed.

What are “Qualifying Employers”?

“Qualifying employers” are those required to have an Emergency Action Plan “whenever an OSHA standard in this part [OSHA Part 1910] requires one”. To save businesses scrolling through every applicable standard to see if they meet the criteria for a “Qualifying Employer”,  guidance provided for compliance with the OSHA standard relating to portable fire extinguishers states:

“If fire extinguishers are required or provided in the workplace, and if anyone will be evacuating during a fire or other emergency, then OSHA requires you to have an Emergency Action Plan”

There are exceptions to this Standard – for example if a business has systems in place to extinguish fires before an evacuation is necessary. Business unsure about whether they are required to comply with the OSHA Emergency Action Plan requirements can check whether or not they meet the criteria for a “Qualifying Employer” using this OSHA e-tool.

Who Should be Trained on the Contents of an Emergency Action Plan?

According to the OSHA Emergency Action Plan standard, only personnel involved in assisting a safe and orderly evacuation of the premises must receive OSHA training. However, it is important to be aware of other federal, state, or local regulations that may have more stringent emergency requirements than OSHA and that therefore preempt the OSHA EAP training requirements

An example of a federal regulation with training requirements that preempt OSHA is CMS’ Emergency Preparedness Rule. This Rule requires all organizations that participate in the Medicare program to provide training on emergency preparedness policies and procedures to all members of the workforce on commencement of their employment and annually thereafter.

How Do the OSHA EAP Requirements Align with CMS’ Emergency Preparedness Rule?

The OSHA EAP requirements align with CMS’ Emergency Preparedness Rule inasmuch as if an organization is in compliance with the CMS Rule it will have covered the minimum elements required by the OSHA Emergency Action Plan standard. However, complying with CMS’ Emergency Preparedness Rule does not absolve organizations from other OSHA compliance obligations.

For example, whereas CMS’ Emergency Preparedness Rule requires organization to have a communication plans for contacting emergency services, OSHA §1926.50 stipulates that phones used to call 911 must have caller ID capabilities activated, must provide the latitude and longitude of the emergency to 911 dispatchers, or must have some other location identifying measure.

Where to Find Help for Complying with the OSHA EAP Requirements

There is a great deal of help available for complying with the OSHA EAP requirements. Businesses can take advantage of the OSHA Evacuation Plans and Procedures e-tool or review the non.-mandatory guidance in the Appendix to Part 190 Subpart E – “Exit Routes, Emergency Action Plans, and Fire Prevention Plans. Alternatively, businesses can speak with their local OSHA office directly to see if they qualify for a free onsite consultation about the OSHA Emergency Action Plan requirements.

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The post What are the OSHA Emergency Action Plan Requirements? appeared first on HIPAA Journal.

An OSHA Safety Walkthrough List is a list of potential hazards individuals with a responsibility for safety should be alert to when conducting a walk-around safety inspection of a workplace. For example, a general OSHA Safety Walkthrough List could consist of hazards such as:

• Slip, trip, and fall hazards
• Blocked through routes and exits
• Frayed or exposed electrical wires
• Missing machine guards
• Poorly maintained equipment
• Substandard housekeeping
• Damage to property or equipment

The Occupational Safety and Health Administration has produced two OSHA Safety Walkthrough Lists – one for managers and business owners, and the other for safety officers. Both advocate a similar process for walk-around safety inspections inasmuch as there should be pre-inspection activities, the walk-around, and post-inspection activities.

Pre-Inspection Activities

OSHA recommends that safety inspectors (regardless of role) prepare for an inspection by familiarizing themselves with hazards that have been previously identified, accident investigation reports, and recent near-miss incidents. These hazards, reports, and incidents should be prioritized to determine whether they have been abated or if further action is required.

Thereafter, OSHA suggests obtaining an OSHA compliance checklist from the Internet that is relevant to the business’s activities and appropriate to the workplace environment. Although it is likely that no checklist will be an exact match for the business’s requirements, OSHA recommends tailoring an existing checklist to the business’s requirements rather than starting from scratch.

Onsite Inspection Activities

The goal of an OSHA Safety Walkthrough List is to help develop a comprehensive list of hazards and prioritize them for addressing. Therefore, in addition to looking for general hazards as listed above, OSHA recommends talking with members of the workforce and asking open-ended questions such as “What is the most hazardous task in your job?” and “What makes it hazardous?”

It can also be advantageous to seek out and speak with new employees to get a “fresh eyes” perspective on safety. Although there will be those who do not want to create a bad impression in their new job, by observing new employees, safety inspectors will be better able to understand which areas of OSHA training require reinforcing or where further OSHA training should be provided.

Post-Inspection Activities

Following the inspection, safety inspectors should prioritize identified hazards based on the likelihood of a hazard occurring compared with the consequences of the occurrence. For example, hazards that cause minor cuts and happen only occasionally would be low priority, whereas hazards that occur frequently or could have a catastrophic outcome should be assigned a high priority.

The prioritization of hazards will enable safety inspectors to create an abatement plan. The plan should include a list of the corrective actions needed and a timeline for implementing the corrective actions. It is important this timetable is adhered to rather than cherry-picking easily controlled hazards in order to remove them from the OSHA Safety Walkthrough List quickly.

Get Help with an OSHA Safety Walkthrough List

If you have no experience in compiling an OSHA Safety Walkthrough List, there are plenty of sources from which to get help. In addition to the two Lists linked to above, OSHA provides a searchable list of safety and health topics and offers on-site consultations for qualifying businesses. If you cannot find the help you need on the OSHA website, or your business does not qualify for an on-site consultation, it is recommended you seek professional advice from an OSHA compliance specialist.

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The post What is an OSHA Safety Walkthrough List? appeared first on HIPAA Journal.

The Occupational Safety and Health Administration (OSHA) has published a 7 Year Lookback Report that summarizes employer-reported inpatient hospitalizations, amputations, and eye losses from 2015 to 2021.

Since 2015, employers have been required to submit a Severe Injury Report to OSHA within twenty-four hours if an employee is admitted to hospital, has a body part amputated, or loses an eye due to a workplace accident.

Since the reporting requirement began, federal OSHA has received 70,206 Severe Injury Reports. The agency has now compiled the reports into a 7 Year Lookback Report which analyzes the injuries by industry, geography, and injury type.

COVID-19 Impacts Data Analysis

Hospitalizations attributable to workplace-acquired COVID-19 are mostly excluded from the 7 Year Lookback Report because employers are only required to report hospitalizations that occur within twenty-four hours of the work-related incident responsible for the hospitalization, and the mean incubation period for COVID-19 is three to six days.

Nonetheless, the virus had an impact on the number of Severe Injury Reports received by OSHA in 2020 and 2021 due to lockdowns, work from home arrangements, and high sickness rates among employees. The industries most affected by the impact of COVID-19 include Mining and Quarrying, Arts, Entertainment, and Recreation, and Education.

Healthcare Among Most Dangerous Industries

Despite hospitalizations attributable to COVID-19 being mostly omitted from the report, the General Medical and Surgical Hospitals category appears fifth in an industry analysis of Severe Injury Reports (by number) behind three construction categories and a mining category. Other healthcare categories to appear high on the list include Nursing Care Facilities and Home Health Care Services.

While the high positions of these healthcare categories could be attributable to the high number of employees in the healthcare industry, the latest Bureau of Labor Statistics Workplace Injuries and Illnesses Report (which includes respiratory illnesses) identifies Overexertion, Falls, Slips, and Trips, and Workplace Violence as particular workplace hazards in the healthcare industry.

Notable Increase in Respiratory Illnesses

One of the most concerning trends highlighted in the BLS Report is a 37.5% increase in reported respiratory illnesses in the private health care and social assistance sector from 2021 (145,300 cases) to 2022 (199,700 cases). The increase coincided with the relaxation of mask mandates in the Spring of 2022 – mask mandates that have been recently reintroduced in several Californian counties.

In this respect, healthcare organizations must be aware of their OSHA compliance obligations with respect to the provision of PPE, conduct risk assessments to assess the risk to employees from flu, Respiratory Syncytial Virus (RSV) infections, and COVID-19, and – where provided – train employees on the correct use, cleaning, and storage of respiratory protection equipment.

The post OSHA Publishes 7 Year Lookback Report appeared first on HIPAA Journal.

In the year to September 2023, the Occupational Safety and Health Administration issued 626 citations for OSHA violation cases in healthcare. The top ten reasons for citations in the health care and social assistance NAICS category (where indicated) were violations of:

• The bloodborne pathogen standard
• The hazard communication standard
• The respiratory protection standard
• The control of hazardous energy standard
• OSHA’s form filling requirements
• The formaldehyde standard
• OSHA’s general requirements
• The asbestos standard
• The wiring methods, components, and equipment standard.
• The exit route standard (maintenance, safeguards, and features)

OSHA does not publish citation-by-citation information because of the volume of citations issued each year across all industries. Federal OSHA – not including state plans – issued 45,950 citations nationwide in the year to September 2023. Nonetheless, it is possible to tell from aggregated data that the 626 citations for OSHA violations in healthcare resulted in more than $1.5 million in fines.

More than a quarter of the 626 citations (162) were attributable to violations of the bloodborne pathogen standard. However, the number of citations for violations of this nature were almost four times the number of inspections for violations of the bloodborne pathogen standard – indicating that citations are coded for the leading violation when multiple violations are found.

Examples of OSHA Violation Cases in Healthcare

To demonstrate how multiple violations can be coded according to the leading violation, in 2016, OSHA responded to an employee’s complaint alleging violations of the bloodborne pathogen standard at Altamont Ambulance Service Inc. in Illinois. After conducting an investigation, OSHA issued twenty-four citations for OSHA violation cases in healthcare and fines totaling $290,100. The five willful, sixteen serious, and three other-than-serious violations of OSHA included the failure to:

• Establish an exposure control plan for bloodborne pathogens.
• Make hepatitis B vaccinations available to all employees.
• Train employees about chemical hazards and precautions.
• Develop an emergency response plan.
• Dispose of, clean or launder contaminated PPE.
• Train workers in operations level emergency response.
• Communicate decisions on the use of PPE to employees.
• Develop a respiratory protection program to protect against infections.
• Mark, keep clear, and properly light emergency exits.
• Follow electrical standards for wiring, components, and equipment.
• Train workers how to use fire extinguishers.

The failure to train employees is a common factor in OSHA violation cases in healthcare with regards to bloodborne pathogens. In some cases, it can be the leading violation. In 2013, the Atlanta Health Careers Institute in Georgia was fined $62,000 for violations of the bloodborne pathogen standard, with $60,000 of the total being attributable to the employer failing to train workforce members on the hazards and precautions – despite being cited for exactly the same violation one year earlier.

Hazard Communications and Respiratory Protection

During the first year of the COVID-19 pandemic, the healthcare industry suffered a huge loss to its workforce. It has been estimated that 3,607 US healthcare workers died, while a further 440,000 contracted the virus out of a workforce of around 9.7 million. By October 2020, eighty-five healthcare establishments had been cited for COVID-19 failures, yet some healthcare organizations continued to violate the hazard communication and respiratory protection standards.

In one case, the West Suburban Nursing and Rehabilitation Center, Illinois, was fined $83,000 for failing to conduct a hazard assessment for unvaccinated employees, failing to maintain distancing between employees failing to monitor the movement of patients suspected to have COVID-19, and failing to ensure all workforce members were trained on the effective use of respirators – one year after an employee had contracted the virus while working at the rehabilitation center and had died.

Speaking about this case, OSHA Area Director Jake Scott said: “Simply wearing a respirator is not enough. Employers must ensure respirators fit correctly and maintain a face-to-face piece seal to ensure they protect the user from the spread of infectious diseases. After more than a year of fighting this pandemic, employers should know the procedures to minimize workers’ risk of exposure and take every precaution.”

Other Types of OSHA Violation Cases in Healthcare

Outside of the “top ten reasons”, there were reassuringly low numbers of OSHA violation cases in healthcare for hazards one might expect to be more common. Violations of the General Duty clause only appeared as the lead violation in seven OSHA violation cases in healthcare, violations of the air contaminants standard appeared in four cases, and violations of the ionizing radiation standard appeared in only two. Notably, there were no violations of OSHA’s whistleblower protections.

OSHA vigorously pursues whistleblower enforcement action when employees are retaliated against or discriminated against for making a complaint to OSHA. For example, in 2012, an employee of the North Star Behavioral Health System raised concerns about the safety of the drinking water at the organization’s Anchorage facility. The employee was fired and ordered to refrain from future contact with regulatory agencies. Instead, the employee made a whistleblower complaint to OSHA.

Following an investigation into the complaint, the health system was told to reinstate the employee and pay him nearly $60,000 in back wages plus $2,018 compensatory damages, $75,000 for his emotional distress, and $100,000 in punitive damages. The health system was also required to repay approximately $35,600 in attorney fees. Consequently, it is important to be aware that OSHA violation cases in healthcare do not only relate to occupational injuries and illnesses.

Healthcare Organizations Must Comply with All Applicable Standards

Healthcare organizations generally do a good job complying with OSHA standards. Indeed, it is quite an achievement for the industry as a whole to only get 626 OSHA citations out of an all-industries total of 45,950 citations (excluding state plans). Nonetheless, there are still some organizations who – either through a lack of knowledge or a willful disregard for the rules – fail to comply with all applicable standards.

If you have a responsibility for safety and health in a healthcare environment, and you are not sure about which standards are applicable to your organization, you have three options. You can download our OSHA compliance checklist, seek advice from an OSHA compliance expert, or contact OSHA directly on 800-321-6742 (OSHA). In some circumstances, you may qualify for a free on-site OSHA consultation or a grant towards developing a workplace training program.

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The post OSHA Violation Cases in Healthcare appeared first on HIPAA Journal.

Since its creation in 1971, the Occupational Safety and Health Administration (OSHA) has entered into more than fifty Memoranda of Understanding with other federal agencies. OSHA’s latest MOU with the National Labor Relations Board establishes a process for information sharing and referrals between the agencies which has implications for OSHA Section 11(c) compliance.

OSHA’s Whistleblower Protection Program enforces the anti-retaliation provisions of 24 federal laws in addition to those in Section 11(c) of the OSH Act. These provisions are designed to protect employees from retaliation for reporting concerns about hazards in the workplace or for reporting violations of workplace safety standards. Employees who believe that they have experienced retaliation in violation of one of these laws may file a complaint with OSHA within the time allowed.

The time allowed to file a complaint with OSHA varies depending on which law has been violated. For example, employees that have been retaliated against for reporting violations of the OSH Act, the Clean Air Act, and the Solid Waste Disposal Act have only 30 days in which to file a complaint; whereas employees that have been retaliated against for reporting a violation of the Seaman’s Protection Act or Pipeline Safety Improvement Act have 180 days to file a complaint with OSHA.

The purpose of OSHA’s latest MOU with the National Labor Relations Board (NLRB) is to standardize the time allowed to file complaints that qualify for anti-retaliation protection under Sections 7 and 8 of the National Labor Relations Act. The Act allows 180 days to file a complaint for retaliation with the NLRB, and the Memorandum of Understanding will enable OSHA to refer qualifying time-barred complaints to the NLRB for investigation and – if a complaint is justified – to initiate proceedings.

In return, when the NLRB receives information about safety or health issues in the workplace or violations of OSHA standards, it will pass the information onto OSHA or encourage the affected individuals or labor organizations to contact OSHA directly. Personnel in both agencies will be trained on the procedures for exchanging information and factors such as what constitutes a violation of the National Labor Relations Act or a violation of the OSHA’s standards or recordkeeping requirements.

The Implications for OSHA Section 11(c) Compliance

OSHA Section 11(c) compliance means complying with §1977.3 of the OSH Act. This standard prohibits employers from discriminating against or retaliating against any employee who files a complaint to OSHA or who testifies in a proceeding relating to the complaint. The standard also covers discrimination or retaliation against any employee who “caused to be instituted any proceeding under or related to the Act” (i.e., a union rep providing advice to a member).

OSHA is keen to promote the message that employees should not fear reporting workplace safety and health issues to the agency; and, when employers retaliate against employees that have filed complaints, OSHA tends to “vigorously pursue whistleblower enforcement action”. For example:

Wells Fargo Ordered to Pay More Than $22M for Retaliating against Former Executive

Delaware Salvage Yard Fined $81,255 and Ordered to Pay Whistleblower $40,000 in Damages

Dentist Ordered to Pay $20,000 Back Wages After Terminating Whistleblower

Employer Ordered to Pay $15,000 Damages for Retaliation Against COVID-19 Whistleblower

Health System to Pay More Than $250K to Settle Whistleblower Investigation

The implications of the MOU with the NLRB for OSHA Section 11(c) compliance are that, rather than having 30 days to file a complaint about discrimination or retaliation, employees will have six times longer to file a qualifying “domination or interference” complaint. Furthermore, OSHA violations that are identified by NLRB will be communicated to OSHA if – for example – a safety and health issue is found during the course of an investigation into a violation of the National Labor Relations Act.

Consequently, the likelihood of a non-compliant employer being investigated by OSHA is higher than ever. Employers who are unsure about the OSHA Section 11(c) compliance requirements should seek professional compliance advice. Employers who are unsure about any of the other OSHA compliance requirements can either download our OSHA compliance checklist or contact OSHA directly on 800-321-6742 (OSHA).

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