Sometimes, the Occupational Safety and Health Administration (OSHA) finds that the problems at one of a company’s facilities are really an issue in all of a company’s facilities. Since 2002, in a small number of such cases, OSHA will seek to enter into a settlement agreement that applies to every one of the company’s facilities. OSHA entered into a record number of such agreements in 2012, when it signed 11 of them; more typically, only one or two employers each year find themselves agreeing to such terms. This year, OSHA has entered into just one corporatewide settlement agreement, with a New York recycling firm.
Tomra NY Recycling operates four recycling facilities in the state. In 2016, complaints from workers at two of the four facilities led to two separate inspections; those inspections led, ultimately, to a corporatewide settlement agreement (CSA) requiring the employer to implement extensive compliance measures to address the exposure of leased and temporary employees to bloodborne pathogens (BBPs). But CSAs don’t tend to stop with fixing the specific cited violation(s). As a result of two identified issues with its BBP program, Tomra is now bound by a set of extensive additional requirements.
Is Corporatewide Enforcement Legal?
Until 2015, OSHA could only impose a corporatewide settlement agreement as part of a negotiated settlement. That changed on December 7, 2015, when Administrative Law Judge Carol A. Baumerich agreed with OSHA that Section 10(c) of the Occupational Safety and Health (OSH) Act, which empowers OSHA to ask the Occupational Safety and Health Review Commission to issue enforcement orders “affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief,” which empowers the Commission to direct a corporation to comply with an enforcement order at all corporate locations—not just at the location that was inspected most recently by OSHA.
Conditions Beyond Compliance
Tomra is required, under the CSA, to bring its BBP program into compliance, but it is also subject to additional inspection, monitoring, and recordkeeping requirements.
Elements of Tomra’s CSA that go beyond just addressing the violations identified by OSHA include:
- Internal corporate monitoring. Tomra is required to designate a corporate officer or senior manager who will be responsible for ensuring that the company is in compliance with the CSA. The designated individual will be required to conduct quarterly inspections at all four facilities to ensure compliance with the CSA and to document the inspections and any actions taken to address compliance issues identified by the inspections. The records must be provided to OSHA upon request.
- Ongoing OSHA inspections. Tomra agreed to permit OSHA to enter its facilities and conduct monitoring at 6-month intervals. Although these inspections are for the purpose of verifying compliance with the CSA, OSHA specified that it retains authority to inspect plain-view violations not covered by the CSA and to conduct other inspections as needed based on referrals, complaints, or accident reports.