The DOL’s proposed guidance addresses a number of issues raised by the Executive Order, including what exactly the enforcement terms mean; how they are classified in terms of severity; and how equivalent state laws will be addressed. Keep reading for a summary of the DOL’s guidance as it pertains to OSHA compliance.
OSHA Citations and the Executive Order
OSHA doesn’t issue anything called an “administrative merits determination,” “civil judgment” or “arbitral award or decision,” so the DOL guidance defines those terms with respect to each agency’s enforcement terminology. According to the DOL’s proposed guidance, the term "administrative merits determination,” with respect to OSHA enforcement actions, refers to:
- Imminent danger notices, and
- Notices of failure to abate
“Integrity and Business Ethics”
To assess whether a potential contractor has “a satisfactory record of integrity and business ethics,” federal contracting officers and labor compliance advisors will assess any violations that employers report with respect to whether they are “serious, repeated, willful, or pervasive.”
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According to the Order, contracting officers should, “where available, incorporate existing statutory standards for assessing whether a violation is serious, repeated, or willful.” Because OSHA already has definitions for these terms, the determination of whether an OSHA citation was serious, willful or repeated will be determined by the classification of the final enforcement order. In other words, an OSHA violation is “serious” if the contractor or subcontractor received a citation for a violation designated as "serious" under the OSHAct, or an imminent danger notice under the OSHAct.
The DOL has announced that it will publish, at a future date, a second proposed guidance addressing which state laws are equivalent to the 14 federal labor laws and executive orders identified in the Order. For many of the laws listed above, this means that violations under equivalent state statutes do not yet have to be reported.
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Unfortunately, that’s not true for safety and health violations. Because the OSHAct permits some states to administer OSHA-approved state occupational safety and health plans in lieu of federal enforcement of the OSH Act, DOL has declared that those state plans are already deemed equivalent to federal OSHA. Therefore, administrative merits determinations or civil judgments finding violations under an OSHA-approved state plan were therefore subject to the Order’s reporting requirements as soon as those requirements became effective.
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