Under the Fair Pay and Safe Workplaces executive order (E.O. 13,673), beginning in October 2017 federal contractors will have to begin disclosing a range of labor law violations when bidding for new federal work. These disclosures include a history of the employer’s recent Occupational Safety and Health Administration (OSHA) workplace safety citations. Last month, the Administration issued a guidance for contractors’ disclosure of OSHA violations.
According to OSHA, employers will need to disclose both pending and closed citations issued during the prior three years. These disclosures will include both federal and state plan citations, even if the state plan violation involves a workplace safety standard that is stricter than federal requirements. Only serious, willful, repeat or failure to abate citations must be disclosed. OSHA declined to exclude serious violations involving technical or paperwork deficiencies from the reporting requirements. Finally, contractors must report adverse decisions in OSHA whistleblower cases brought against the company.
The guidance states that federal contracting agencies will not disqualify a federal contractor from receiving a contract just because it discloses OSHA citations. The inclusion of pending citations is troublesome given the fact that these may eventually be withdrawn or vacated. Federal contractors concerned over these disclosures may not be willing to accept serious citations during negotiations with state or federal OSHA agencies, and may hold out for reclassification of the violations to other than serious. Federal contractors should begin planning now for all of their disclosure obligations under the new executive order.