COMMENTARY & ANALYSIS
We have written before about how the Biden administration officials are wielding the powers of their offices to bolster the union movement, but if you are an employer you need to be aware of some of the tactics they have deployed that you may need to deal with.
The Occupational Safety and Health Administration (OSHA) has embarked on weaponizing the General Duty Clause (GDC), an umbrella provision in federal law that covers any condition or action taken by an employer that the agency deems to have created an immediate danger to the safety or health of its workforce, even when no specific regulation exists to address the situation under review.
Included in the agency’s enabling legislation, the Occupational Safety and Health Act of 1970 (OSH Act), the GDC provision imposes on employers the general duty of maintaining a safe and healthy workplace for their employees in the absence of and beyond specific regulations aimed at addressing injuries and illnesses.
It specifically states, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
The agency has recently issued charges and fines under the GDC umbrella to employers who it determined have engaged in what OSHA holds to have been the medical mismanagement of their workers’ injuries.
These medical mismanagement charges have been leveled against employers who in particular are facing union organizing campaigns where safety has been raised as an issue, most notably the unionizing efforts directed at Amazon’s distribution centers.
On April 18, the agency issued a GDC citation to an Amazon fulfillment center in Castleton, NY, that charges the company with medical mismanagement of 10 identified employee injuries that caused or were believed to be likely to cause additional harm or impair recovery of employees. The agency has been investigating union charges of medical malpractice at this location since at least 2019. OSHA proposed $15,625 in penalties for the latest violations.
The charges claim that Amazon delayed evaluation, care and treatment of injured workers from a medical provider other than the onsite medical representatives, whose performance OSHA alleged was inadequate. They also accuse Amazon of prematurely returning injured workers to their regular jobs, which allegedly resulted in worsening of the injury, exacerbation of pain and impairing recovery from work-related injuries/illnesses that required medical treatment.
“A Callous Disregard”
“The work at these fulfillment facilities is physically demanding. Returning a worker with a back injury or possible concussion to their job without proper medical evaluation and care can lead to prolonged injuries and lifelong suffering,” said Doug Parker, who heads OSHA. “The examples uncovered by our investigation demonstrate a callous disregard for the well-being of Amazon's Castleton employees that is completely unacceptable.”
In February, OSHA cited the Castleton location for ergonomic violations, just weeks after it was cited in December 2022 for recordkeeping violations. The agency’s actions followed a referral from the U.S. Attorney's Office for the Southern District of New York that led OSHA to open inspections in Castleton and at five other Amazon warehouse facilities in Florida, Illinois, New York, Colorado and Idaho in the summer of 2022.
This latest action marks the fourth time in 2023 that OSHA has cited Amazon for violations, including citations issued at seven warehouse facilities including Castleton and New Windsor, NY, Deltona, FL; Aurora and Colorado Springs, CO; Nampa, ID; and Waukegan, IL. OSHA says it currently has 20 open inspections at Amazon locations.
When OSHA cited the company’s facility in Colorado Springs in February, Parker said, “We continue to find that Amazon’s work processes are designed for speed, not safety, and that these processes cause serious injuries to workers. Amazon needs to focus more of its passion for innovation and performance on eliminating the hazards that injure workers.”
Attorney Lawrence Halprin of the Keller and Heckman law firm, explains, “In taking this approach, OSHA apparently believes it has a better chance of sustaining General Duty Clause citations based on medical mismanagement of employee injuries than on demonstrating that the underlying job presents a recognized hazard for musculoskeletal disorders.”
In the long term, OSHA claims it is taking this approach as a means of improving workplace medical management practices in general and reducing the frequency and severity of work-related ergonomic injuries, according to Parker.
Halprin stresses, “It would be prudent for employers who utilize onsite workplace clinics or similar arrangements to ensure its worksites have appropriate medical protocols (developed or reviewed by physicians with adequate knowledge of occupational medicine), which are documented and properly implemented with the required medical supervision and appropriate quality review.”
Taking these preventive measures will go a long way to protect your operation from unexpected GDC charges, he adds. “If an OSHA inspector hands your site representative a medical access order, it would be prudent to consult legal counsel.”