When the Trump Administration’s OSHA declined repeatedly to issue a COVID-19 emergency temporary standard and otherwise favored issuing guidance over citations, the agency faced a series of lawsuits and legal challenges from worker advocacy groups and national unions. OSHA prevailed in those actions, retaining its primacy and exclusive authority to make workplace safety enforcement decisions. But in the wake of those failed legal challenges, pro-labor advocates and Democratic politicians and policymakers have begun a serious push to establish a private right of action for employees and their representatives under the Occupational Safety and Health Act.
OSHA has failed not only to protect workers from existing hazards – ranging from unsecured trenches to infectious diseases like COVID-19 – but has also taken minimal action to tackle emerging risks, such as those associated with climate change, the reshoring of manufacturing jobs, increased automation, and the expansion of artificial intelligence in the workplace. . . . [I]t is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.
Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority.
OSHA’s Injury and Illness Recordkeeping regulations require employers to record certain injuries and illnesses within seven days of the incident and also to preserve a copy of those records for five years. 29 C.F.R. Part 1904 et seq. Separately, the Occupational Safety and Health Act of 1970 (OSH Act) authorizes the Secretary of Labor to issue citations alleging violations of regulations adopted under the Act. 29 U.S.C. §§ 651-678. The statute of limitations in the OSH Act states, however, that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c).
The article provides a historical look at how OSHA interpreted and enforced its injury and illness recordkeeping regulations Continue reading →
The Legal Backgrounder reviewed the history of OSH Act criminal cases and a new Department of Justice and Department of Labor joint initiative designed to increase the frequency of both criminal prosecutions for workplace safety violations generally, and to pursue more criminal charges against individual managers rather than just corporate defendants. The article explains:
“A key change in DOJ’s strategy for ‘upping the ante’ in workplace-safety criminal enforcement is the decision to transfer responsibility for prosecuting worker-safety violations from the Justice Department Criminal Division’s Fraud Section to the Environmental Crimes Section (ECS) of the Environment and Natural Resources Division.”
The article concluded that:
“the new Department of Justice worker-endangerment initiative will result in a renewed and more concerted effort to pursue criminal charges under environmental statutes where workers’ health and safety is allegedly being threatened. Based on this rekindled commitment by DOL and DOJ, employers should expect government officials investigating workplace-safety violations to probe for possible criminal violations—not only under the OSH Act where there has been a fatality, but under the myriad of environmental statutes and Title 18’s federal criminal code.”