All posts tagged osha

Silica Safety Enforcement Delayed for Construction Industry

Stonecutter's Workshop

Cal/OSHA has delayed enforcement of its crystalline silica safety standard for the construction industry for another three months to ensure the California rules are in synch with federal rules on the dangerous airborne matter.

The move came after Fed OSHA announced April 6 a delay in adoption of the crystalline silica standard for the sector “to conduct additional outreach and provide educational materials and guidance for employers.”

The silica rules have already been in effect for general industry since 2016 and the delay in enforcement is only for the construction industry. Enforcement for the construction sector was slated to start June 23, but that’s been changed to Sept. 23 under the new order.

Under the new silica standard, the permissible exposure limit is 50 micrograms per cubic meter of air, compared to the old standard of 100.

The California standard is similar to the federal standard, which the industry is challenging in a federal lawsuit. One outfit, the American Chemistry Council, wrote to the Cal/OSHA standards board that the 50 micrograms level is unnecessary and that the current standard, in place since 1971, has markedly reduced the cases of silicosis.

Industry has complained that the cost of complying with the new standard for employers nationwide will be about $6 billion, although Fed-OSHA says it will cost $371 million for employers to fall in line.

The sticking point for the federal construction silica rule is that it requires wet cutting of silica-containing materials to reduce the chances of particles in the air.

The California rules allow for wet cutting and dry cutting with vacuum saws that suck in the particles before they escape into the air. Contractors would rather cut dry rather than wet.

Fed-OSHA’s requirements were also scheduled to take effect on June 23, but the agency announced that implementation would be delayed by three months to give industry a chance to provide data showing that dry vacuum cutting is just as safe in reducing crystalline silica dust as wet cutting.

While Cal/OSHA’s move only delays enforcement, the silica rule is already on the books and employers should comply with it.

All construction employers covered by the standard are required to:

  • Establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers, including procedures to restrict access to work areas where high exposures may occur.
  • Designate a competent person to implement the written exposure control plan.
  • Restrict housekeeping practices that expose workers to silica where feasible alternatives are available.
  • Offer medical exams – including chest X-rays and lung function tests – every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
  • Train workers on work operations that result in silica exposure and ways to limit exposure.
  • Keep records of workers’ silica exposure and medical exams.

 

If you have not started complying, you should get your new safety protocols in place now. You have an additional three months to do so.

 

Report, Investigate Near Misses to Improve Safety

Man nearly steps on a banana peel on a city street.

One of the most important workplace safety tools that you can put to use is the reporting of near misses and correcting the factors that led to such a close encounter.

A near miss is an event that could have led to a workplace injury, illness or death. While you are not required to report near misses to your insurer, you should be taking note of them as they can help you identify deficiencies in your workplace safety protocols.

You should use near misses as the starting point to conduct inspections that could help you prevent a real workplace injury in the future. But you can’t investigate what you don’t know, and it’s crucial therefore that your staff report such events.

Investigating near misses is part of any successful workplace safety management program and you should make the process for reporting them easy and without ramifications for the reporting employee.

 

What is and isn’t a near miss

An OSHA factsheet defines a near miss – or close call – as an incident in which no property was damaged and no workers were injured, but where, given a slight shift in time or position, damage or injury easily could have occurred.

The factsheet stresses that although near misses cause no immediate harm, they can precede events in which a loss or injury could occur.

You should resist the urge to chalk the near miss up to just luck or bad luck, because a series of events or lack of precautions would have led up to the close call.

Typically, near misses are the result of a faulty process or management system and it should be your goal to investigate and find out where the breakdown occurred and what you can do to improve it.

 

A near-miss program

Near-miss reporting is vitally important to preventing serious, fatal and catastrophic incidents that are less frequent but far more harmful than other incidents.

The National Safety Council recommends that the following should be part of your safety program:

  • Clearly define “near miss.”
  • Establish a reporting system that reinforces the notion that every opportunity to identify and control hazards, reduce risk and prevent harmful incidents must be acted on.
  • Investigate near-miss incidents to identify the root cause and the weaknesses in the system or employee action that resulted in the circumstances that led to the near miss.
  • Use investigation results to address the failure that led to the near miss and to improve safety systems, hazard control and risk reduction.
  • Use the lessons learned and your new protocols in employee safety training.

 

Reporting system

One of the key aspects of a near-miss program is reporting. Most importantly, you want to encourage your workers to report such incidents because often they may occur out of sight from a supervisor or manager.

You should put out clear instructions for all personnel on how to report near misses, including whom to report to. Create forms that detail the events, what happened and why they think it constituted a near miss.

Make sure to not assail any worker reporting a near miss. Encourage your personnel to report near misses without fear of retribution or being blamed.

Avoid thinking in terms of whom to blame when investigating a near miss and instead focus on what precipitated it.

 

Case studies

LESSONS LEARNED – A manufacturer uses event and near-miss analysis to head off future incidents. It uses an event system that records the near miss, including detailed information on what led to the close call and what lessons can be learned from the event. Those lessons are shared throughout the organization.

 

IMMEDIATE ACTION – A chemical manufacturer tracks lower-level claims and near misses to identify areas where more significant injuries are likely to occur. The company encourages employees to take action to resolve issues on a temporary basis until permanent controls can be implemented.

New Slip, Trip, Fall Prevention Rules for General Industry

A Caucasian, female office worker climbing on a ladder trying to reach for a box on a shelf.  She wears a black outfit from top to bottom and has brown hair.  She stands on a ladder that is a bit too short and leans forward dangerously trying to retrieve the box.  The shelf has several compartments with the same box in each compartment.  There is a wall and large glass windows on the left, behind her.  There is a white ceiling above her.  The floor of the office is out of view.

Federal OSHA implemented a new rule on Jan. 17 that is aimed at reducing slip, trip and fall hazards in the workplace.

The revisions are aimed at tackling one of the main causes of worker deaths and injuries in American workplaces by applying rules designed for the construction and manufacturing sectors to other general industries.

They add requirements for personal fall protection systems and eliminate existing mandates to use guardrails as a primary fall protection method. They also allow employers to choose from accepted fall protection systems which type they want to use.

The new standard will prevent some 30 workplace deaths and more than 5,800 injuries every year, OSHA says.

While the rules will have little impact on construction and manufacturing, management in other industries needs to bone up on the rules to ensure companies are in compliance.

The most significant update to the rules allows employers to choose the fall protection system that is most effective for them and based on a variety of acceptable options, including the use of personal fall protection systems.

The agency has allowed the use of personal fall protection systems in construction since 1994, and the final rule adopts similar requirements for general industry.

The final rule also allows employers to:

  • Use rope descent systems up to 300 feet above a lower level.
  • Prohibit the use of body belts as part of a personal fall arrest system.
  • Require worker training on personal fall protection systems and other equipment designed for falls.

 

OSHA says it tried to align fall protection requirements for general industry “as much as possible” with its requirements for construction because many employers perform both types of activities.

The final rule for general industry updates requirements for ladders, stairs, dockboards, and fall and falling object protection.

 

Key provisions

Fall protection

An employer’s obligation to provide fall protection is triggered when employees work at least four feet above a lower level.

The final rule requires employers to select one or more of these options, depending on the particular situation or activity:

  • Guardrail system
  • Safety net system
  • Personal fall arrest system (body belts now prohibited)
  • Positioning system
  • Travel restraint system
  • Ladder safety system (does not include cages or wells)
  • Handrails
  • Designated areas (only permitted on low-slope roofs)

 

The rule establishes fall protection options and other requirements for some specific situations like hoist areas, runways, wall openings, repair pits, and stairways.

 

Ladder safety

The final rule sets out general ladder safety requirements applicable to fixed ladders, portable ladders, and mobile ladder stands and platforms.

Employers must ensure that:

  • Ladders are capable of supporting at least the maximum intended load, i.e., the total weight and force of anticipated employees and equipment or other materials.
  • Mobile ladder stands and platforms are capable of supporting four times the maximum intended load.

 

Ladders must be inspected before initial use during a work shift, and as necessary, to identify visible defects that could cause worker injuries.

 

Training

Employers must ensure training of workers who use personal fall protection or work in dangerous circumstances, including working on loading docks. Workers must be trained by a “qualified person,” and the training must be understandable to employees and cover:

  • Identification of fall hazards.
  • Proper use of personal fall protection systems.
  • Maintenance, inspection, and storage of equipment or systems used for fall protection.

 

Employers must also ensure the retraining of workers when they have reason to believe workers lack the required comprehension and skill.

OSHA Sets Limits on Drug Testing Injured Workers

drug test

Employers are not allowed to have a blanket policy of requiring drug and alcohol tests after a workplace injury as it may discourage injury reporting, the U.S. Occupational Safety and Health Administration has said in an interpretation letter.

It issued the letter in response to a company’s blanket policy after some intoxicated workers had been injured on the job, and it comes as a new OSHA regulation on post-injury testing is slated to take effect at the start of 2017.

These recent actions should spur any employer with a policy of testing its workers post-accident to revisit its rules so they don’t run afoul of OSHA’s regulations.

OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule does not bar employers from drug or alcohol testing its workers, but it does prohibit companies from using such testing or the threat of it as a form of retaliation against employees who report injuries. These new rules were published in May 2016 and will take effect on Jan. 1, 2017.

However, the rules specifically point out that if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.

With this new rule the agency is likely to take a hard stance on mandatory post-injury drug testing without a compelling reason.

It is unclear what will happen to employers who enforce post-incident testing policies that OSHA deems unreasonable, although several experts say they expect the agency will attempt to cite employers.

The rule will likely have far-reaching effects considering that 56% of U.S. manufacturers had such policies, according to a 2012 study by the Government Accountability Office. That same study found that these policies “may discourage workers from reporting injuries and illnesses.”

OSHA says in the rule that employer policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident and for which the test can accurately identify impairment caused by drug use, according to the final rule.

Examples of instances that OSHA says would not be reasonable to conduct a drug test include:

  • An employee who reports a bee sting.
  • A repetitive strain injury.
  • An injury caused by a lack of machine guarding, or by a machine or tool malfunction.

 

Under the rule, employers do not have to specifically suspect drug and/or alcohol use before testing, but there should be a reasonable possibility that such use by the reporting employee contributed to the reported injury or illness for the employer to mandate the testing.

The probable cause for a drug test would need to be based on observation and a good-faith belief that an employee is under the influence of drugs or alcohol. Such observations should be made by two people trained to spot such impairments and should be documented in writing

Employment law attorneys recommend that all employers look at their current policy for post-injury drug and alcohol testing, how that policy is communicated to employees, and what kind of feedback they had when the policy was put into place.

OSHA Gets Tough on Audits and Penalties May Apply Earlier than Expected

OSHA inspection

Those higher fines that federal OSHA plans on implementing Aug. 1, can actually start applying to any workplace safety violations that were cited in inspections as early as February of this year.

That’s because OSHA can take as long as six months after an inspection to issue citations and the penalties it proposes for the employer. This sobering news comes as OSHA finalizes new regulations regarding electronic reporting of injuries and has started conducting more probing investigations than it has in the past.

Under the federal budget for 2016, fines for the most common violations – serious and other-than-serious – fines are expected to rise to $12,471 from the current $7,000. Also, willful and repeat violations will rise to a maximum of $124,709 on Aug. 1.

The final penalties have yet to be set and pundits say that the Labor Department has until July 1 to publish the new interim final rules. OSHA may choose to set a lower figure if it concludes that the new maximums would have a negative economic impact or that the social costs would outweigh the benefits.

The higher penalties are also coming as OSHA has revised its requirements for recording and submitting records of workplace injuries and illnesses. Once the new rule takes effect, you will be required to electronically submit the recorded information for posting on the OSHA website if you have 250 or more workers.

This new rule will also cover those establishments with 20 to 249 employees that are classified in 67 specific industries which have historically high rates of occupational injury and illness. These businesses must also electronically submit information from their 2016 OSHA 300A Summaries to OSHA by July 1, 2017. Beginning in 2019, the submission deadline will be changed from July 1 to March 2 for the previous year.

In addition, OSHA is set to approach inspections differently, trading frequency for rigor, which could mean that once a company is being inspected there’s a chance it will incur multiple penalties.

Specifically, it will switch from trying to reach a certain number of inspections per year to conducting more rigorous inspections. That could mean more penalties per company because more can be uncovered during longer inspections.

More detailed inspections will likely mean more employee interviews by OSHA investigators, providing the time to wait for sample results and make return visits, and generally diving deeper. That can mean more citations and bigger penalties.

 

What you can do now

Companies that want to ensure they’re in compliance should consider getting a hazard assessment.

You can also arrange for a compliance audit that will identify any gaps and create an action plan to close them.

Companies should also look at a trend analysis of the most common injury types that happen with their employees and create safety activities around those, which is a step toward mitigating or eliminating accident occurrences.

Those activities combined should keep you from popping up on OSHA’s radar.

Pay Extra Attention to Safety for Teen Workers

portrait of a salesgirl working  in  gift box store

Summer is coming and many employers take on additional staff, including teenagers who are new to the workforce.

These new workers need special attention and training in workplace safety as they have no experience on the job. Every year about 70 teenagers die while working in the U.S., while another 100,000 are injured seriously enough to require emergency room treatment.

Keep in mind there’s a lot you can do to prevent injuries to your teen workers, and the measures you take to keep them safe will help protect all employees.

The first thing is that you need to know the law and OSHA workplace safety and health regulations. Check your compliance and make sure teens are not assigned work schedules that violate the law, or given prohibited tasks like operating heavy equipment or using power tools. Make sure they have their work permits if under 18.

Make sure also that your supervisors who give teens their job assignments know the law. Encourage supervisors to set a good example, as they are in the best position to influence teen attitudes and work habits.

Ensure that all jobs and work areas are free of hazards. The law requires you to provide a safe and healthy workplace. Involve every worker in your Injury and Illness Prevention Program.

Train teens to put safety first. Give clear instructions for each task, show them what safety precautions to take and point out possible hazards. Prepare teens for emergencies, accidents, fires and violent situations. Show them escape routes and explain where to go if they need medical treatment.

Your teen employees are the next generation of workers. You will help them develop personal skills that make them more likely to go on to further their education and succeed in life.

As you hire these young people, know that you do make a difference.

Educating them about professional standards, workplace health and safety, rights on the job, and how to communicate effectively will shape the workplaces of the future, as well as keep your business running smoothly.

Report All Workplace Injuries Promptly, Including First Aid

IF ONE OF your staff suffers an injury at work, it’s your duty to report that injury to your workers’ comp carrier.

Many employers think they can skip making a report if someone is hurt at work yet doesn’t need to go see a doctor immediately. But the problem is that even what seems like a minor injury can turn into a major problem down the road.

Take the case of a man who was working for Louis Truth Dairy, when a crate with milk containers down a shoot and hit him in the shin.

The force of the impact knocked him to the ground and left a welt. Despite the bruise, he did not see think the injury was serious, so he didn’t report it to his employer.

But the welt became a boil that eventually opened up and became infected. The man then sought care from his doctor, but did not mention the wound to his employer until three months after the workplace injury was incurred.

Although, in this instance, the employer had no control over the delay, it’s common for workers not to report a minor injury, such as a small cut on the hand.

But you never know when an injury can become infected or otherwise develop into something more complicated.

 

Consequences of Late Reporting

  • A delay in seeking treatment may cause a deterioration in the employee’s condition.
  • Hindering your ability to investigate the claim, as witnesses may no longer be available or key evidence may not be preserved.
  • The ability to deny uncompensable claims can be affected. Many states have regulations that prohibit denial of claims after a specified time period.
  • The ability to deny a claim due to a worker being under the influence of drugs or alcohol.
  • The opportunity to direct the initial treatment to an occupational health clinic that specializes in treating workers’ comp injuries and coordinates with the employer’s return-to-work program may be lost.

 

First-aid claims

In California, employers are permitted (under specific guidelines) to directly pay for their first-aid claims. This practice may have a positive effect in minimizing the impact on future experience modifications, and reduce the future cost of premiums. But you need to carefully make a decision on first aid.

 

Definition

First aid, as defined by the California Labor Code and Regulations, is any one-time treatment, and any follow-up visit, for the purpose of observation of minor scratches, cuts, burns, splinters or other minor occupational injuries, which do not ordinarily require medical care.

Such one-time treatment, and follow-up visit for the purpose of observation, is considered first aid, even though provided by a physician or by other registered professional personnel.

 

Reporting:

All first-aid claims should be reported to your workers’ compensation carrier as a precautionary measure.

We can assist you if you have any claims questions. We can work with your carrier to help you be certain that such claims are classified as first-aid only.

 

Examples of first-aid treatment

  • Application of antiseptics
  • Treatment for first-degree burns
  • Application of bandage(s) during any visit to medical personnel
  • Use of elastic bandage(s) during first visit to medical personnel
  • Removal of foreign bodies not embedded in an eye if only irrigation is required
  • Removal of foreign bodies from wound if removed using tweezers or another simple technique
  • Use of non-prescription medications and administration of a single dose of prescription medication on first visit for minor injury or discomfort
  • Soaking therapy on initial visit to medical personnel or removal of bandages by soaking
  • Application of hot or cold compress(es) during first visit to medical personnel
  • Application of ointment to abrasions to prevent drying or cracking
  • Application of heat therapy during first visit to medical personnel
  • Use of whirlpool-bath therapy during first visit to medical personnel
  • Negative x-ray diagnosis
  • Observation of injury during visit to medical personnel

injured at work gold-silverman

Focus on Eye Safety

Thousands of people are blinded each year from work-related eye injuries that could have been prevented with the proper selection and use of eye and face protection.

Eye injuries alone cost more than $300 million per year in lost production time, medical expenses and worker compensation.

OSHA requires employers to ensure the safety of all employees in the work environment. Eye and face protection must be provided whenever necessary to protect against chemical, environmental, radiological or mechanical irritants and hazards.

Eye and face protection is addressed in specific standards for the general industry, shipyard employment, longshoring and the construction industry.

It is impossible to predict when and where an eye incident might occur, but it can happen literally in the blink of an eye, injuring or even blinding a worker who’s not wearing proper protection.

It’s an employer’s responsibility to identify the eye safety hazards at the workplace, and then provide workers with the best protection against them. Along with training on how and when to use eye protection equipment, workers should learn about cleaning, storing and replacing equipment.

In most cases, workplace eye injuries can be avoided if workers have been trained to know when and what eye protection equipment should be worn – and what to do in case of an eye injury.

Below are some common causes of eye injuries, with suggested first-aid responses. In all cases, professional medical attention should be sought as soon as possible after taking initial first-aid measures.

 

Foreign particles – Go to the nearest eyewash station or water source and flush the eye until the object is rinsed out. Don’t rub the eye because the object can scratch or become embedded in the eye. If the object doesn’t rinse free, bandage the eye loosely and seek medical attention.

Chemical splashes – Seconds count! These require immediate action. Go immediately to the nearest emergency shower or water source. Look directly into the stream of water, hold the eyes open with your fingers, and flush the eyes for at least 15 minutes.

Light burns – Exposure to welding, laser or other radiant light without appropriate eyewear does not cause immediate pain, but – four to 12 hours later – exposed eyes may begin to feel “gritty” and become sensitive to light. Redness or swelling may occur. Keep your eyes closed while waiting for medical attention.

Cuts – Don’t rub, press or wash cuts near the eye, as this can cause further damage. Loosely bandage both eyes to stop any eye movement.

Embedded objects – Never try to remove objects embedded in your eye; this can cause further damage. Loosely bandage both eyes and get medical attention.

Bumps and blows – Apply a cold compress for 15 minutes to reduce pain and swelling.

 

The best solution when your employees are doing any work that could result in an eye injury is to wear proper eye protection. But sometimes accidents happen and your workers should know what to do if they suffer an eye injury.

 

 

Six Ways to Get Cited by OSHA

There are few things worse for an employer than to receive a letter or phone call from OSHA requesting information about the company’s compliance with workplace safety regulations.

But many employers either don’t handle their encounters with OSHA well or they fail to properly report serious injuries that have taken place on their worksites. Whatever the case, there is a right way and a wrong way to deal with occupational safety and health authorities.

The right way can make the process easier on the employer, while the wrong way can set them up for frustration, confrontation and heavier fines.

The head of Cal/OSHA’s heat illness prevention unit recently gave an employer outreach presentation on the steps to take if you want to get cited by Cal/OSHA.

Follow the advice at your own risk:

  1. Don’t answer If OSHA contacts you by letter, a complaint referral or by phone, don’t respond. Of course if you do respond, the matter can often be dealt with over the phone or by submitting a written response.
    Respond to inquiries promptly and courteously if you want fair treatment. But if you simply fail to respond, it is a sure-fire way to receive an inspection.
    Sometimes, however, if OSHA has received a complaint, it will likely want to conduct an inspection of your workplace to verify if the alleged conditions exist.
  1. Don’t reportor file a report late for a fatality or serious injury. Doing that results in an automatic penalty of $5,000. Remember, you have eight hours to report a workplace fatality or serious injury to Cal/OSHA after learning of the incident.
    The Cal/OSHA Appeals Board may reduce that penalty if an employer files late, depending on how late they are. But if an employer fails to report at all, it can expect to pay the full amount. Remember: a serious injury is one that requires hospitalization for more than 24 hours other than for medical observation, or if an employee “suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.”
  1. Fail to comply with document requests. Don’t think that ignoring a document request by OSHA will make the problem disappear. If you can promptly produce the documents requested, including your Injury and Illness Prevention Program (IIPP), it will go a long way to making smooth an encounter with OSHA.
    To make sure that all of your supervisors and managers are on board, put in place transparent procedures to follow if contacted by OSHA. Top priority is informing top management about correspondence with the authorities.
    And don’t worry: you don’t have to keep all of your documents on site. If you have locations in the field, you can keep your workplace safety documents in your office and e-mail them to the OSHA officer.
    One exception is your heat illness prevention program, copies of which must be located on site.
  1. Be unaware of the IIPP requirement. This also includes having employees who are not aware of your workplace safety program.
    Express bewilderment about an IIPP and you can bet that OSHA will want to look at your safety training records and talk to your employees about specific parts of your IIPP.
  2. Provide a generic IIPP. If you want to get dinged, download a generic version of an IIPP from the Internet and present it as your own when asked by OSHA. Even better, don’t include your company name anywhere in the document.
    Another way to land in hot water is to produce another employer’s IIPP, even if you are in a dual-employer situation.
  1. Ignore OSHA regulations for your industry. During a site visit, OSHA will look for hazards, employee exposure, “process flow” and the presence of required elements of relevant regulations. The Division of Occupational Safety and Health will document both compliance and non-compliance, take samples and lots of photos. The division will cite an employer that isn’t evaluating the hazards specific to its worksites.

inspector

Beware of the ACA Whistleblower Complaint

By now you should be aware of the various penalties that can be levied against employers for not providing health insurance to their full-time employees once the employer mandate takes full effect.

But are you aware of another liability contained in the Affordable Care Act – the whistleblower complaint?

The ACA prohibits an employer from discharging or in any manner discriminating or taking retaliatory action against any employee because the employee or an individual acting at the request of the employee has:

  1. Received a credit or a subsidy for purchasing health insurance coverage on a public exchange;
  2. Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the federal government or the state attorney general, information regarding a violation of Title I of the ACA;
  3. Testified or is about to testify in a proceeding concerning an ACA violation. Or if they assisted or participated, or are about to assist or participate, in such a proceeding.
  4. Objected to, or refused to participate in, any activity, policy, practice or assigned task that the employee reasonably believes was in violation of any provision of the ACA.

 

The task of investigating whistleblower complaints is the responsibility of the federal Occupational Safety and Health Administration. Employees that feel they’ve been wronged in terms of the ACA have 180 days to file an administrative complaint with the OSHA Whistleblower Directorate.

So far there have been no Department of Labor (DOL) administrative tribunals for an ACA whistleblower complaint. That’s not surprising since the employer mandate has partly taken effect only this year for employers with 100 or more full-time or full-time equivalent employees.

While there have been no tribunals, the OSHA has received one complaint that was thrown out. Nonetheless, the complaint could be a reflection of what a complaint might look like in the future, after the employer mandate is fully implemented.

 

The case:

A woman employed as a “durational employee” by the Housing Authority of Columbus, Georgia, filed an ACA whistleblower complaint in August 2014.

She alleged that she was terminated in January 2014 – four months after she’d refused to sign and acknowledge that she understood “and agreed” with the terms of the company’s policy on health coverage for employees.

Those were laid out in a letter she’d received in September 2013, which stated that durational employees were ineligible for participation in the employer’s group health insurance plan and that only regular, full-time employees were eligible.

She said that after she had refused to sign, she received her first unsatisfactory performance evaluation and a significantly lower annual bonus based on the unsatisfactory review.

She alleged that adverse employment actions were the result of her refusal to accept the terms.

OSHA dismissed the complaint, on the grounds that it was filed to late – more than 180 days following the date of termination.

The woman appealed the decision to the DOL Office of Administrative Law, claiming that her complaint was timely because she had attempted, unsuccessfully, to file timely complaints within the 180-day limitations with other federal agencies, as well as with the White House.

But the administrative law judge threw out the complaint, saying the employer could not be held liable for retaliation prior to the effective date of the employer mandate.

 

The takeaway:

The case illustrates the most likely scenario under which an employee may gain ACA whistleblower protection after this year.

Other whistleblower complaints likely to surface in 2016 would concern complaints of adverse employment actions taken after an employer receives notice that one or more of its employees qualified for a tax credit or a subsidy for purchasing health benefits through a public exchange.

However, all complaints must be filed within 180 days of an adverse employment action.

 

whistle ref