OSHA and pro sports—are concussions the NFL’s black lung?

San Francisco line backer Chris Borland rocked the sports world yesterday by announcing his retirement from pro football at the age of 24 after playing only one NFL season. His reason: concerns about the long-term impact of football-related head trauma.

The news comes even as the NFL has implemented league-wide rules in an attempt to minimize head injuries. And, those rules seem to be working. During the 2014 season, the rate of concussion fell 25 percent as compared to the 2013 season, and are down 36 percent since 2012. Yet, NFL players still suffer 0.43 concussions per game. And, while the rate of concussions has fallen, the rate of injuries overall continues to rise, up 17 percent from 2013 to 2014, with 265 players placed on injured reserve during the 2014 regular season. This means that during the NFL’s regular season, more than one player per game suffered a season-ending injury.

Think about those numbers? If you ran a manufacturing plant, would you be content with a “Days Without Injury” calendar that was forever set on “zero?” And, more to the point, wouldn’t you expect OSHA eventually to take interest in your extraordinarily unsafe workplace?

All the way back in 2008, OSHA opined that it has the jurisdiction to regulate professional sports if the athletes are employees. There is no doubt that NFL players, protected by a labor union and parties to a collective bargaining agreement with the NFL, are employees, subject to OSHA’s regulatory jurisdiction.

OHSA lacks a standard on pro sports, but it does have its general duty clause. It provides, “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.” OSHA used this general duty clause to cite Sea World of Florida following  a trainer’s death from a killer-whale attack. If the general duty clause can reach the entertainment industry, why can’t it also reach professional sports?

While OSHA likely can reach pro sports, the bigger question is will it? On its own accord, history shows that the answer is no. But, what if the NFLPA believes that the NFL isn’t doing all it could to reduce the risk of head injuries and files a complaint with OSHA? What then? Or, what if, god forbid, a player dies on the field during a game? Surely, OSHA would then investigate. For years, the government and the coal industry ignored the risk of black lung disease, even as more and more miners fell ill. The NFL has the power to regulate head injuries. It better be sure it is doing everything it can, or it is taking a huge risk that OSHA will step in and regulate in the league’s place.

When the government comes knocking, don’t forget not to retaliate

Last week, I wrote about what to do when OSHA comes knocking. One issue I did not address is the potential for retaliation against employees who provide information to, or otherwise cooperate with, the government.

Thankfully, the Department of Labor, on its own blog, recently provided a not-so-subtle reminder:

Employee cooperation and candor are crucial to these efforts. Just as important, employees who give testimony are protected … from retaliation or discrimination of any kind on account of their cooperation.

Whether it’s the EEOC, the DOL (Wage and Hour or OSHA), or the NLRB, employees not only have the right to file complaints or charges, but they also have the right to provide information to the investigating agency or otherwise cooperate in the investigation. For example, if OSHA is coming into your business, the inspector will almost certainly want to interview some of your employees. If they are non-management employees, you have no right to participate in or observe the interview.

It is critical that both before and after the investigation you communicate to your managers and supervisors that retaliation will not be tolerated. It’s also a good idea to communicate the same to your employees. Having, and documenting, this communication will be your best friend in the event that you have to take a legitimate adverse action against an employee on the heels of his or her participation in a government investigation.

Do you know what to do when OSHA comes knocking?

News broke over the weekend of a fatality at a local manufacturing plant. Undoubtedly, OSHA was on the scene to unravel what happened.

Injuries or fatalities aren't the only reasons OSHA might arrive at your door. It might have received a complaint from a current or former employee. It might a random investigation. You might be part of a targeted industry. Or, it could be a follow-up from a prior investigation.

Regardless, when OSHA arrives, whatever the reason, your personnel needs to know that the first call should be to your employment lawyer. Unless the investigator has a search warrant or subpoena, he or she has no right to enter your business, no matter what he or she says to bully through your door.

OSHA is not your friend. It is not there to give you an atta-boy on workplace safety. It is there to find violations and levy fines to make money for OSHA. This is not cynicism; this is fact. And once it is through your door, everything becomes fair game, no matter the reason for the investigation.

OSHA's fines range from a maximum of $7,000 for each serious violation, and a maximum of $70,000 for each willful or repeat violation. Trust me, these numbers add up quickly.

What is OSHA looking for? Here is the agency's Top 10 list, right from its website:

1. Fall Protection
2. Hazard Communication
3. Scaffolding
4. Respiratory Protection
5. Lockout/Tagout
6. Powered Industrial Trucks
7. Electrical – Wiring Methods
8. Ladders in Construction
9. Machine Guarding
10. Electrical – General Requirements

If you are fortunate enough not to have OSHA in your facility, use the time to conduct a top-to-bottom safety audit. Call a workplace safety expert. Call an employment lawyer. Call someone knowledgable in this area to tell you what needs to be fixed before OSHA does it for you. And, if (when?) OSHA shows up at your door, call your employment lawyer to handle the investigation, mitigate the disruption, and, as best as possible, limit damage.