August 26, 2016
Federal Contract Bidders to Report OSHA Violations in Rule
By Bruce Rolfsen
Aug. 25 — Federal and state OSHA violations, even those being contested, will have to be reported to federal contracting authorities starting in 2017 under requirements set by regulations and guidance issued Aug. 24 for the Fair Pay and Safe Workplaces executive order (E.O. 13,673).
The final rule will apply to prime contractors, as well as their subcontractors, seeking federal contracts worth $500,000 or more once the rule (81 Fed. Reg. 58,562) is completely phased in Oct. 25, 2017.
The OSHA violation reporting is part of a larger mandate from the Department of Labor and Federal Acquisition Regulatory Council that includes requirements to notify contracting offices of other workplace enforcement actions such as the Fair Labor Standards Act and equal employment opportunity violations.
Bloomberg BNA requested to talk with OSHA officials Aug. 24 about implementing the rule and assisting employers, however the agency didn’t provide a representative.
The guidance (81 Fed. Reg. 58,654) says employers need to report any federal OSHA serious, willful, repeat or failure-to-abate violation issued within three years prior to the federal government offering the contract.
There is a one-time exception to the three-year window. Because the rule (RIN:9000-AM81) takes effect Oct. 25, 2016, citations issued before the effective date don’t have to be reported, the guidance says.
State Plan Violations Count
State plan violations that are the equivalent of serious, willful, repeat or failure-to-abate violation must also be reported, the guidance says.
Some employer representatives sought to exclude violations issued by state workplace safety agencies because state rules sometimes set requirements that are different or stricter than federal rules.
The Labor Department disagreed.
“The Department finds State Plans to be equivalent to the OSH Act because they perform the same functions as OSHA—setting standards, conducting enforcement inspections, and issuing citations,” the department’s guidance says.
Failing to include state plans would lead to a gap in disclosure for safety-and-health violations in the more than 20 states and territories covered by the executive order. “Including the State Plans results in a more level playing field than would excluding them,” the guidance says.
Serious Discussion
Employer representatives had objected to the requirement to report all serious OSHA violations, saying since serious violations account for about 75 percent of the agency’s violations, many involve “technical violations” that don’t represent the integrity of their safety programs or business ethics.
The department’s guidance tries to mollify some of those concerns. “The classification of a violation as serious under the Order does not mean that the contractor will not receive an award,” the guidance says. “Rather, the purpose of classifying certain violations as serious is to limit the scope of violations that will be considered.”
Repeat Redefined
While the rule didn’t alter OSHA’s definition of a serious violation, the rule does define a repeat violation differently than OSHA.
Under OSHA, a repeat violation can be cited when there was a similar unchallenged violation by the employer within the past five years.
The Safe Workplaces rule reduces the reporting window to three years.
Under current OSHA policy, repeat violations span a five-year period, the guidance says. However, the three-year time frame conforms to the order’s direction that the standards for repeated violations should consider whether the employer has had additional violations “of the same or a substantially similar requirement in the past 3 years.”
The employer will still be expected to report the repeat violation, however the “agency labor compliance advisors” reviewing the citations will decide if the initial violation is outside the three-year window, the guidance says.
Whistle-Blower Cases
In addition, some OSHA actions involving whistle-blower cases under Section 11(c) of the Occupational Safety and Health Act must be reported even through no citations are issued in those cases, the guidance says. Section 11(c) prohibits employers from retaliating against workers for reporting an injury, illness or safety concern.
About whistle-blower cases, the guidance says, “For example, if a court issues a civil judgment finding that a contractor violated the OSH Act’s anti-retaliation provisions by firing a worker in retaliation for filing a complaint with OSHA, an ALCA should find that this violation is serious because it meets the retaliation criterion for serious violation.”