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Former head of OSHA discusses workplace injury policies, DOJ enforcement

Joe Kellmeyer Max McCombs June 15, 2016

At a recent presentation at the St. Louis office of Thompson Coburn, John Henshaw, the former U.S. Assistant Secretary of Labor for OSHA, offered some insights into several top-of-mind environmental, health and safety issues. Mr. Henshaw, now a Managing Principal of Chicago-based Cardno ChemRisk, spoke to the Thompson Coburn-sponsored Environmental, Health & Safety (EHS) Leader’s Network, a group of leading environmental, health and safety professionals from companies and institutions from across the Midwest.

Mr. Henshaw started his remarks by offering a case study of how the DOL has responded to a recent issue involving employees reporting workplace injuries. The DOL filed a lawsuit against U.S. Steel Corporation over a company policy that requires employees to immediately report workplace injuries. Such policies are very common across the manufacturing and chemical industries. U.S. Steel disciplined two employees who belatedly reported workplace injuries after the symptoms of the injuries later manifested themselves. DOL contends such policies discourage employees from reporting injuries for fear of retaliation — especially when symptoms develop over time — and is seeking to prohibit U.S. Steel from requiring employees to report injuries earlier than seven days after an incident occurs. The case is noteworthy, Mr. Henshaw said, because it serves as a reminder that companies may need to rethink their immediate reporting policies. But, DOL’s case against U.S. Steel remains undecided and is still pending.

Mr. Henshaw also discussed OSHA’s criteria for seeking criminal sanctions against employers for violations of safety regulations. He noted that under, the Occupational Safety and Health Act, criminal sanctions for such incidents — even those involving the death of an employee — are limited mostly to misdemeanor offenses and thus are not viewed as strong deterrents. Mr. Henshaw weighed in on the Department of Justice (DOJ) and the DOL’s December 2015 announcement that the DOJ’s Environmental Crimes Section would now handle criminal prosecutions of worker safety violations involving environmental issues. He said that the joint announcement may not be as monumental as some had anticipated. The agencies have made similar past arrangements with less fanfare, and the change may be tied to the fact that both agencies have limited resources. In addition, Mr. Henshaw noted that high-profile environmental events and large companies will still likely receive the greatest attention, which increases the likelihood of enforcement.

If you have questions concerning regarding Mr. Henshaw’s presentation and the DOJ/OSHA Memorandum of Understanding, please contact Joe Kellmeyer or Max McCombs in Thompson Coburn’s environmental practice area.