Highlights from the 2015 Midwinter Meeting of the American Bar Association OSHA Law Committee


Matthew Deffebach, a partner in the Houston, Texas office and a Litigation Section Head, attended this year’s American Bar Association OSHA Law Conference in March. The Conference provided a wealth of information and insight into OSHA’s initiatives for the year. Below are some highlights:

Ann Rosenthal, an Associate Solicitor, discussed the following focus areas:

  • Contingent workers such as temporary workers, seasonal workers, contractors, and other joint-employer scenarios continue to be a priority for OSHA. Employers should be especially mindful of their potential joint employer status which may create unexpected liability. 
  • Enterprise Wide Relief remains a key strategy for OSHA enforcement. In this strategy, OSHA attempts to require abatement from the entire enterprise rather than a single location. 
  • OSHA will continue to use the General Duty Clause as applicable. 
  • Criminal enforcement (particularly referrals to state prosecutors) is increasing.
  • Whistleblower complaints initiated by employees are a priority for OSHA. OSHA administers the whistleblower protection provisions of more than twenty whistleblower protection statutes; however, OSHA 11(c) (which prohibits any person from retaliating against any employee because the employee has complained about unsafe conditions or exercised other rights) accounts for more than half of the whistleblower complaints. 
  • OSHA will continue to push the modernization of recordkeeping, including public or online records. In the long run, OSHA could attempt to require many more employers to report injuries more frequently.
  • OSHA is focused on the passage of the new silica standard.

Thomas Galassi, the Director of the Directorate of Enforcement Programs, discussed the enforcement topics below:

  • There has been an upward trend in inspections resulting from employee complaints. Employers should remember to utilize their internal complaint procedures and make employees aware of these procedures. 
  • In December 2013, OSHA published a request for information regarding possible changes to the PSM standard and is continuing to analyze the record of possible changes. The Small Business Regulatory Enforcement Fairness Act (SBREFA) panel for revisions to PSM will be initiated in June 2015.
  • Oil and Gas hazards have been added to the SVEP criteria. A non-fatality inspection of an employer with the NAICS code 211111, 213111, or 213112 (Oil and Gas Production Services; Drilling and Well Servicing; “Upstream Oil and Gas Industry”) in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these), will now be considered a severe violator enforcement case.

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