Enforcement

OSHA plans to “modernize” its long-standing Voluntary Protection Programs (VPP) that recognize employers for instituting workplace protections above what regulations and consensus standards require, and is seeking input on a range of possible changes -- from incentives for joining to assessment methods and a potential “tiered” approach.

OSHA is gaining new authority to issue visas to victims of certain alleged crimes including forced labor, obstruction of justice and human trafficking, further expanding the Biden administration’s efforts to protect undocumented immigrants from the threat of deportation when they report workplace violations.

The Occupational Safety and Health Review Commission (OSHRC) affirmed OSHA’s citation against Walmart for a violation of its safety standard for items stored “in tiers,” after the U.S. Court of Appeals for the 2nd Circuit overturned an earlier decision where the panel applied a narrower reading of the rule to say it did not apply to the retailer’s facility.

OSHA has issued citations at three more Amazon warehouses claiming it exposed workers to a high risk of injury and delivered hazard alert letters detailing alleged ergonomic hazards at the facilities, further escalating the agency’s recent series of enforcement actions against the retailer and pressing it to develop a “company-wide strategy” to address them.

Employer law firms say OSHA’s new directives for regional enforcement officials to step up use of “instance-by-instance” citations and avoid “grouping” multiple violations under a single penalty shows that the agency is seeking to tighten enforcement and boost monetary penalties nationwide, with one calling the moves a “game changer.”

The U.S. Court of Appeals for the 3rd Circuit is backing OSHA’s narrow reading of a little-used provision in the OSH Act allowing workers to sue the agency when it fails to address an “imminent danger” of workplace harm, agreeing that such suits face the same six-month statute of limitations as federal enforcement action under the law.

OSHA is instructing regional enforcement officers to avoid grouping together employers’ alleged health and safety violations and instead prioritize “instance-by-instance” citations that could lead to greatly increased overall penalties, loosening a long-standing policy that said such citations should only come in response to “clear bad faith” by an employer.

Industry attorneys say an Occupational Safety and Health Review Commission (OSHRC) case where the panel underlined the “creating employer” test for liability at multi-employer worksites could also showcase the limits of that doctrine for OSHA enforcement, especially the need to prove that the company had knowledge of the danger it allegedly created.

OSHA is urging a federal appeals court to reject an employer’s arguments that the OSH Act’s safety standard program is unconstitutional under the “non-delegation” doctrine, arguing that both the law itself and Supreme Court precedent establish well-defined limits on that authority.

OSHA is citing Amazon over a wide range of alleged safety violations at three of the retailer’s warehouses in Florida, Illinois and New York, marking the latest step in an investigation prompted by rare referrals from the Department of Justice (DOJ) to the agency.