In a recent decision in the Eastern District of New York, Walsh v. Community Health Center of Richmond, Inc., et al., 21-CV-3094 (ARR)(TAM), the court held that OSHA has the right to pursue individual damages for a Complainant under Section 11(c) even though a prior federal action brought by the Complainant against her employer raising the same whistleblower allegations under New York Labor Law (“NYLL”) § 740, which protects employee-whistleblower, was dismissed with prejudice. The Complainant sued her employer directly in the prior federal lawsuit alleging, among other things, that her termination violated OSHA’s General Duty Clause. During the course of the litigation, the Complainant filed a voluntary stipulation dismissing her NYLL § 740 claims with prejudice. It should be noted that the court there recognized that Section 11(c) of OSHA does not have a private right of action.

During an OSHA inspection, the compliance officer will most likely request certain documents such as the manufacturer’s manual, safety and health policies, internal or external safety and health audits, videotapes, minutes from safety meetings, trade association data, employee complaints, etc. Initially, the employer representative should ensure that all document requests are memorialized in writing so there is no confusion as to what is requested. When responding to these document requests, employers need to be mindful of potential privileges, e.g., attorney-client privilege covering an internal safety audit so that they are not waived unintentionally. Employers also need to be vigilant in protecting any documents containing trade secrets, commercially sensitive or other confidential financial information.

On June 21, 2022, the Department of Labor released the Spring 2022 rulemaking agenda. The dates listed on the schedule are non-binding but reflect priority issues for OSHA.

The newly published agenda makes clear that the much-anticipated heat illness rules remain at the “pre-rule” stage, and it is unclear when the agency will publish proposed rules related to the same. Similarly, rules related to the prevention of workplace violence in health care and social assistance remain delayed, with the current schedule showing a Small Business Regulatory Enforcement Fairness Act review in September 2022.

The short answer is the proverbial attorney response, “it depends.” Under OSHA’s multi-employer citation policy, an employer may be held responsible for the violations of other employers where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite. In Secretary of Labor v. Summit Contracting Group, OSHRC Docket No. 18-1451 (May 10, 2022), the two-member Commission determined that the 11th Circuit has never explicitly adopted or rejected the multi-employer doctrine, and thus applied Commission precedent to the circumstances of the case. After doing so, the Commission ultimately reversed the administrative law judge’s decision and vacated a fall protection citation issued against a general contractor for the failure of its subcontractor’s employees to use fall protection.