As we closed the book on 2013 — a truly remarkable year of OSHA enforcement and regulatory activity — we look to the future, and think about what to expect from OSHA in 2014. Over the next couple of weeks, we will roll out what we believe are the 5 most significant OSHA developments to monitor in 2014.
If you are interested in how accurate our past predictions have been, take a look at these articles from December 2011 forecasting five OSHA developments for 2012 and from December 2012 predicting three developments from OSHA in 2013.
Without further ado, here are the 5 OSHA-related developments you should anticipate in 2014, so says the collective wisdom of the national OSHA Practice Group at Epstein Becker & Green:
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- New Judges May Change the Outcomes of OSHA Disputes
The Occupational Safety and Health Review Commission (OSHRC) is a body of independent Administrative Law Judges who adjudicate contests of OSHA citations at the hearing level, and a three-judge panel of Commissioners who hear appeals of those cases. Historically, the OSHRC Commissioners have included two Commissioners from the President’s party and the third from the opposite political party. For years now, the Commission has been comprised only of two Commissioners, both of the President’s party, and the potentially more pro-employer seat has remained empty, until now. The White House just announced a nominee for the empty seat on the Review Commission — Heather L. MacDougall. For the past decade, Ms. MacDougall has been an attorney representing management in OSHA disputes. Prior to 2003, she served as Chief Legal Counsel and Special Advisor to the Chairman of the OSH Review Commission. Although Ms. MacDougall will likely be in the minority in many decisions by the Review Commission, having a management-side voice in the discussion at the Review Commission level can only help the employer community.
On the flip side, a development with more potential impact on OSHA disputes is Sen. Harry Reid’s decision to exercise “the Nuclear Option” to change Senate rules on judicial appointments. Specifically, the Senate approved a rules change in November to eliminate the filibuster on presidential nominees (except for Supreme Court nominees). This means that President Obama’s judicial and executive branch nominees no longer need 60 votes to reach the Senate floor for an up-or-down vote. This matters to OSHA disputes because OSHA cases can be appealed from the three Commissioner Panel at OSHRC out to the U.S. Court of Appeals for either the Circuit with jurisdiction over the cited workplace or the District of Columbia Circuit. In other words, every OSHA case can be appealed to the DC Circuit, which has long been a conservative, pro-employer body. The Nuclear Option was executed ultimately because three of President Obama’s appointees to the DC Circuit were being blocked. With the rules changed in the Senate, President Obama may now be able to stack the DC Circuit, and change its complexion from the good forum it is now for employers in OSHA cases.
- Heat Illness Will Get More Attention by Cal/OSHA and Private Litigants
Over the past few years Cal/OSHA has aggressively enforced California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which requires employers to provide to employees training, access to shade, and adequate drinking water for work outdoors in high heat conditions. Under Cal/OSHA’s heat illness statute, employers also are required to maintain one or more shaded areas, with either open-air ventilation, forced ventilation, or forced cooling, and employers are required to allow and encourage employees to access these shaded or cooled areas for cool down periods of no less than five minutes or as employees feel the need to do so.
On October 10, 2013, the California Legislature joined Cal/OSHA’s fight, and signed a bill amending California Labor Code Section 226.7 to include penalties for failure to provide Cool-Down Recovery Periods (“CDRPs”). This requirement kicks in on January 1, 2014, after which California employers will be required to pay a premium for not providing CDRPs to employees. An important distinction between the new Statute and Cal/OSHA’s heat illness prevention rule is that Cal/OSHA’s rule applies only to employees working in high heat conditions, whereas the CDRP legislation does not identify specific working conditions that trigger it. Employees working in air-conditioned offices may also be entitled to CDRPs. The amendment also now allows private litigants to recover for violations, so 2014 is sure to see substantial new litigation in California including new heat illness-related wage and hour class action suits. This will also trigger more employee complaints to Cal/OSHA about heat illness to support their civil suits, and therefore, even more Cal/OSHA Heat Illness Prevention citations. Check out our article on the OSHA Law Update blog for more information about California’s new Cool-Down Recovery Period legislation.
