OSHA Sets Rule for Affordable Care Act Whistleblower Complaints

The Washington, D.C.-based Occupational Safety and Health Administration (OSHA) has published a final rule that establishes procedures and time frames for handling whistleblower complaints under the Affordable Care Act (ACA) . The rule protects employees from retaliation for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. It also protects employees from retaliation for raising concerns regarding conduct they believe violates the consumer protections and health-insurance reforms found in Title I of the ACA.

The rule also establishes procedures and time frames for hearings before Department of Labor administrative law judges in ACA retaliation cases, review of those decisions by the Department of Labor Administrative Review Board and judicial review of final decisions.

“This rule reinforces OSHA’s commitment to protect workers who raise concerns about potential violations of the consumer protections established by the Affordable Care Act or who purchase health insurance through an Exchange,” says Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.

In 2013, OSHA published an interim final rule and requested public comments. The final rule responds to the comments and updates the rule to clarify the protections for workers who receive financial assistance when they purchase health insurance through an Exchange.

OSHA’s Affordable Care Act fact sheet provides more information regarding who is covered under the ACA’s whistleblower complaints protection, protected activity, types of retaliation and the process for filing a complaint. The fact sheet is available at Whistleblowers.gov/factsheets_page.html.

How to Deal with an OSHA Inspection

Dealing with an OSHA inspection requires some knowledge of the Washington, D.C.- based Occupational Safety and Health Administration’s history and its background. OSHA is part of the U.S. Department of Labor and was created through the Williams-Steiger Occupational Safety and Health Act of 1970, which was signed into law on Dec. 29, 1970, by President Richard M. Nixon. Before OSHA, there were nearly 6,000 workplace fatalities annually, 50,000 deaths from workplace-related illnesses and 5.7 million non-fatal workplace injuries. Injuries alone cost American businesses more than $125 billion.

OSHA is responsible for worker safety and health protection, and it has made a significant difference in the safety and health of workers in all industries. Since its inception, OSHA helped cut the work-related fatality rate in half; worked with employers and employees to reduce injuries and illnesses by 40 percent; and reduced trenching and excavation fatalities by 35 percent. To accomplish these goals, OSHA encourages employers and employees to reduce workplace hazards and implement new safety and health programs, as well as improve existing ones.

Consequently, all U.S.-based businesses covered by the OSH Act are subject to inspection by OSHA compliance safety and health officers (CSHOs). Most inspections are conducted without advance notice. Because OSHA cannot inspect all 7 million workplaces it covers each year, it seeks to prioritize its focus on those that present imminent danger situations—hazards that could cause death or serious physical harm.

Keep in mind that OSHA considers an employee on a roof over 6-feet high without fall protection imminently dangerous.

Other high priorities include fatalities and catastrophes, which are any incidents involving the deaths or hospitalizations of three or more employees. These catastrophes must be reported to OSHA within eight hours. In addition, employers must report any employee hospitalizations, amputations or loss of an eye within 24 hours. Complaints, allegations of hazards or violations also receive high priority. Referrals of hazard information from other federal, state or local agencies; individuals; organizations; or the media receive consideration for inspection. Follow-ups—checks for abatement of violations cited during previous inspections—are conducted by the agency in certain circumstances. Planned or programmed investigations will sometimes be aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries or illnesses.

Roofing is considered a high-hazard industry. Roofing job sites are highly visible and working roofers can be seen from several blocks away; therefore, possible infractions or violations are much more visible. As such, it is likely OSHA may come to visit your job site.

When a CSHO comes onsite, the first thing he or she is supposed to do is announce himself or herself to the management representative (the owner, superintendent, foreman or safety consultant). At this point, the CSHO will show his or her credentials—these credentials are similar and carry the same weight of law as those of an FBI agent. CSHOs also have a working relationship with other governmental agencies. An OSHA compliance officer can call in the U.S. Environmental Protection Agency, local Department of Environmental Protection, Department of Transportation, or U.S. Immigration and Customs Enforcement if he or she suspects other regulatory infringements.

At this point, the CSHO will conduct the opening conference and explain why this workplace was selected for inspection and describe the scope of the inspection. The employer will choose a representative to accompany the officer during the inspection. An authorized representative (often a union representative, someone designated by employee consensus or even the complainant) of the employees has the right to join the inspection. Regardless, the officer will consult privately with a reasonable number of employees during the inspection. The company representative may not be allowed to participate in these consultations. (Learn more in an OSHA Inspections Fact Sheet.)

Following the opening conference, the compliance officer and representatives will walk through the portions of the job site covered by the inspection, looking for hazards that could lead to employee injury or illness. The compliance officer also will review workplace injury and illness records and posting of the official OSHA poster.

During the walkthrough, the compliance officer may point out some violations that can be corrected immediately. Although the law requires these hazards be cited, prompt correction is a sign of good faith on the part of the employer. Compliance officers try to minimize work interruptions during the inspection and will keep confidential any trade secrets they observe. The only time a CSHO can stop a job is if an employee is in immediate danger.

As a professional safety consultant, I have been involved in numerous OSHA inspections. During these inspections, I collect information. I listen to what the CSHO has to say and take copious notes. I know the rules OSHA must follow and I note every possible mistake or shortcut the officer may make during the information-gathering process. While doing this, I am cordial with the officer; I speak politely and respectfully and as little as possible. The information I gather can sometimes be used at the informal hearing to get some of the citations lowered or, if OSHA is mistaken or has not followed its own protocols, removed completely.

In the meantime, I make sure my client immediately fixes any issues that OSHA has cited us on. Just like OSHA, I want all employees to be able to work safely and without the fear of injury and illness.

YouthBuild Provides Life and Job Skills

The U.S. Department of Labor announced the availability of approximately $73 million in YouthBuild grant funds to develop programs that will help out-of-school youth complete high school or General Educational Development programs, as well as learn critical occupational skills in construction, health care, information technology and other in-demand fields.

“Too many of our young men and women face challenges that prevent them from reaching their full potential,” says U.S. Secretary of Labor Thomas E. Perez. “The YouthBuild program helps them overcome these challenges by providing participants with the resources they need to develop the life and job skills that lead to a place in the middle class.”

The department will award approximately 75 grants with a maximum funding of up to $1.1 million each. The grants will be awarded to organizations that oversee education and employment services for disadvantaged youths in their communities. The department anticipates serving approximately 4,950 young people in this grant cycle.

YouthBuild serves as an alternative education program that provides classroom instruction, case managers and occupational skills training for 16- to 24-year-olds at risk of falling out of the labor force. Participants are often those who have been in the juvenile justice system, are aging out of foster care, dropped out of high school or are at risk of failing to reach key educational milestones.

Successful grantees have historically provided construction skills training to participating students and must continue to offer that training. However, new guidelines issued in February 2012 expanded the list of eligible industries that grantees are allowed to offer skills training opportunities for to include training in high-demand occupations, such as health care and information technology. Students in YouthBuild also receive leadership development training and access to community service activities to ensure that they maintain a connection to their communities through volunteerism.

The solicitation for grant applications, which includes information about how to apply for a grant, is available online.

Learn more about YouthBuild and other youth employment and training programs.