When FBI Director James Comey calls President Trump a liar, the world takes notice, but when Trump lies about workplace safety, the world takes little notice. Trump’s administration has recently provided significant “relaxation” in the government’s approach to occupational safety. The administration recently delayed action on a rule that would require the employer to electronically report workplace injuries so they can be posted for the public. OSHA has also put off enforcement of an Obama-era standard for silica, a mineral linked to a disabling lung disease and cancer. I’ve dealt with many silica exposure claims in Wisconsin particularly coming from the Kohler Corporation in Kohler, Wisconsin where silica is a necessary ingredient in many bathroom fixture manufacturing processes. The administration has also proposed changes in beryllium exposure limits. After 40 years of development a new rule under the Obama administration was set to lower workplace exposure to beryllium a mineral linked to a lung disease estimated to kill 100 people annually. The nation’s largest beryllium producer had agreed to back the new restrictions. A few weeks ago as the rule was going into effect the new administration proposed changes that many expect may exempt major industries from this tougher standard.
When asked about the Trump administration’s approach to workplace safety a White House spokesman said “The President and his administration care very much about worker safety…” Yet another lie. See also Under Trump, Worker Protections Are Viewed With New Skepticism
In most instances, an injured worker cannot sue her employer for a workplace injury. However, if an injury results from an employer’s reckless, intentional, or illegal action, an injured worker can bring a separate claim against the employer directly. An employer’s violation of the Wisconsin state safety statute or of any Department of Workforce Development (DWD) safety administrative rule which causes a worker’s injury can trigger a 15% increased penalty for the employer (Section 102.57 of the Worker’s Compensation Act). This increased compensation is based on the amount of compensation paid by the insurance carrier and is capped at $15,000. The big deal is that the safety violation penalty is not paid by the insurance company–it is paid directly from the employer’s pocket (which also makes for increased litigation of these claims!).
In a win for injured workers, a recent Court of Appeals case (Sohn Manufacturing v. LIRC), decided on August 7, 2013, reaffirmed the ability of the Worker’s Compensation Department to hold employers responsible for unsafe behavior. In the Sohn case, the worker operated a die cutter machine, and the employer instructed her to clean it while the anvil rollers were running. The worker suffered a severe hand injury when her hand was pulled into the machine. A state investigator found an OSHA violation as well as a violation of the state safety statute (Section 101.11). An administrative law judge and the Labor and Industry Review Commission affirmed an award of a safety violation under 102.57 of the worker’s compensation act.
The employer challenged this ruling in court, arguing that the federal OSHA law preempted Wisconsin’s ability to enforce safety procedures under Section 102.57 and that an OSHA investigation cannot form the basis for a state safety violation claim. Injured workers should be thankful that the Court of Appeals rejected both of these arguments. First, the Court explicitly stated that OSHA does not preempt Wisconsin’s ability to award penalties under Section 102.57, as the safety violation statute is not an enforcement mechanism and OSHA was not intended to impact state worker’s compensation rules. More importantly, the Court indicated that an OSHA violation of a federal workplace safety regulation can be used as basis to demonstrate an employer’s violation of Wisconsin’s state safety statute (Section 101.11).
While the decision was not surprising, it reaffirms the state’s commitment to holding employer’s accountable for safety violation rules under the worker’s compensation system. Workers and practitioners also should remain aware of any OSHA violation found post-injury. A document demonstrating a federal OSHA violation can form the immediate basis for a safety violation under Section 102.57.