Total Articles: 498
Ever wonder what the Occupational Safety and Health Administration (OSHA) would do if an employer refused to pay a fine? We just found out, and it’s not just the employer that needs to be concerned. After a New Jersey-based construction company failed for four years to pay $412,000 in penalties that the OSHA assessed against it, the 3rd Circuit Court of Appeals recently found the President – and only board member – of the company in contempt and therefore liable to pay the company’s penalty.
It’s hot outside. The rising temperature has implications for employers, specifically the responsibility to monitor employee health.
OSHA Redesigns Whistleblower Protection Program Website. Is your Anti-Retaliation Program up to Date?
OSHA recently modernized its Whistleblower Protection Program Website. The redesigned site includes useful and interactive materials regarding whistleblower statutes enforced by OSHA, including a video that highlights industries that may fall under its jurisdiction. While the site includes an abundance of information regarding whistleblower laws and protections, employers should take note of the section highlighting the importance of an effective anti-retaliation program. These programs ensure that employees feel conformable reporting safety and other compliance issues to their employer without fear of retaliation. An effective anti-retaliation program documents the employer’s commitment to safety reporting, particularly when facing allegations of retaliatory conduct. Given the significant changes in law on the horizon that may impact worker safety issues (e.g., medical and recreational marijuana laws), it is important for employers to revisit their anti-retaliation program to ensure they are up to date and remain effective.
Next Generation Robotics and Workplace Health and Safety – How Businesses Safely Adopt Through Assessment and Prevention of Related Hazards
Natalie Pierce, co-chair of Littler’s Robotics, AI and Automation Practice group, and Alka Ramchandani Raj, Of Counsel member of the Workplace Safety and Health practice group, discuss how the use of robotics is affecting workplace safety and health. Natalie and Alka explain that while workplace repetitive stress injuries cost employers billions of dollars each year, OSHA has predicted that the integration of robotics will drastically reduce these injuries and associated costs. On the other hand, there are four types of injuries that OSHA has identified as greater risks as more robots enter the workplace. Alka reviews guidance to help employers mitigate those risks, describes the process used to evaluate safety controls, and explains how virtual reality safety training environments can help employees stay safe.
On July 10, 2019, U.S. House of Representatives Democrats released a bill that, if passed, would require OSHA to develop a federal standard on workplace heat stress. Under the proposed bill, OSHA would have two years to propose a heat protection standard to protect both indoor and outdoor workers.
Summer temperatures can create hazards for workers, and employers can be liable for not addressing conditions that could lead to injuries and illnesses, such as heat exhaustion and heat stroke. Liability can arise whether work is being done outside in construction, landscaping, and agriculture, or inside in non-air conditioned manufacturing plants and warehouses.
On May 14, 2019, OSHA issued a final rule as part of its ongoing Standards Improvement Project (SIP). The final rule is set to go into effect on July 15, 2019. Consistent with the project’s rationale of reducing regulatory burdens while maintaining or enhancing worker safety and health, the updated regulations encompassed in the final rule generally simplify employer efforts both to comply with the agency’s requirements as well as to determine how compliance can be achieved. For example, the rule replaces 31 pages of regulatory text on how to manage hazardous chemicals in the construction industry with a cross reference to an identical standard for general industry. Even with OSHA’s emphasis on regulatory simplification, however, there are several key requirements that employers should closely consider to ensure continued compliance with OSHA standards.
Employers consider many factors when choosing whether to challenge investigatory subpoenas. They now have an additional consideration: whether a court might grant the Occupational Safety and Health Administration (OSHA) more time to issue a citation if the employer challenges a subpoena. So said the U.S. District Court for the Western District of Texas in Secretary of Labor v. Ben E. Keith Company, No. SA-19-CV-527-XR (June 18, 2019).
Don’t Know What You Got (Till It’s Gone): Is OSHA Required to Give Managers and Supervisors Their Rights Before Interviewing Them?
When an inspector from the Occupational Safety and Health Administration (OSHA) shows up at your workplace, know this: everything—and we mean everything—that a manager or supervisor says at any point to the inspector will bind the company and may be used against the company to support a citation.
Franczek recently hosted an at capacity seminar on preventing workplace violence. As a follow-up to that event, and as further introduction to Tracey Truesdale and Jason Patterson who frequently counsel employers on this issue, we would like to share what the law, and more specifically the Occupational Safety and Health Act, says about violence in the workplace.
On June 11, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion vacating the Mine Safety and Health Administration’s (“MSHA”) 2018 rule (“2018 Amendment”) entitled, Examinations of Working Places in Metal and Nonmetal Mines, codified at 30 C.F.R. § 56/57.18002, see 83 Fed. Reg. 15,055 (Apr. 9, 2018). In so doing, the D.C. Circuit ordered the reinstatement of MSHA’s January 23, 2017 version of the rule (“2017 Standard”), which revised the previously existing workplace examination standard at 30 C.F.R. § 56/57.18002.
Over the last couple of years, employee incentive programs have been under attack from the Department of Labor. However, OSHA and MSHA have undertaken their efforts against incentive programs in different ways. In the preamble to the 2016 proposed amendments to 29 CFR § 1904.35, OSHA discussed how it could issue citations to employers based on workplace safety incentive programs should the program be found to discourage reporting of injuries. MSHA has been battling the issue through litigation with appeals still currently pending as explained more fully below.
In many ways, workers’ compensation (WC) and the OSHA are very different. WC is a statutory compensation scheme designed to limit an employer’s liability in exchange for more expedient payment of medical expenses, wage replacement, and death benefits.
This past Memorial Day weekend, the southeastern region of the United States experienced a historic heatwave that set all-time records. It’s only going to get hotter, and temperatures throughout the summer can create hazards for workers working both outside and inside. You could be held liable for creating conditions that lead to heat-related injuries and illnesses that may occur during these warm months, so you should take steps now to keep your employees safe and limit your legal exposure.
It’s that time of year again…when federal agencies, including OSHA, tell us what is on the horizon for rulemaking activity. This week the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
OSHA Requests Information on Potential Changes to Lockout/Tagout Standard Including Addressing Robotic Technology
OSHA’s Lockout/Tagout Standard at 29 C.F.R. 1910.147 regulates the control of exposure to unexpected energization during service and maintenance on machines or equipment. On May 18, 2019, OSHA issued a Request for Information (RFI) seeking “information regarding two areas where modernizing the Lockout/Tagout standard might better promote worker safety without additional burdens to employers: control circuit type devices and robotics.”
Will OSHA Pay Your Attorney’s Fees for Fighting an Improper Citation Under the Equal Access to Justice Act?
The Occupational Safety and Health Administration (OSHA) conducted an inspection of your facility. OSHA issues a serious citation to your company for a machine guarding violation, despite the fact the OSHA investigator did not actually observe a plausible infraction. Your company would like to contest the citation because it was not justified. However, your company is not sure if it can afford to pay an attorney to fight the citation. There may be relief. The Equal Access to Justice Act may provide your company with an avenue for having the government foot the bill for your company challenging the citation.
In December 2012, a “service coordinator” (similar to a community service worker and home health worker) employed by Integra Health Management Inc. was fatally stabbed during a home visit to one of the company’s clients.
Scott A. Mugno, President Trump’s nominee to be Assistant Secretary of Labor for Occupational Safety and Health, withdrew his name from consideration in a letter submitted on May 14, 2019, to the White House and to Secretary of Labor Alexander Acosta.
Members of the House of Representatives recently introduced legislation that would require the Department of Labor (“DOL”) to promulgate a standard addressing workplace violence in the healthcare and social service industries. Under the bill, the standard would need to include requirements for employers in the healthcare and social service industries to develop comprehensive plans protecting workers from violence, investigate workplace violence incidents, provide training to employees, and prohibit acts of retaliation against an employee who reports violence or threats. But, despite having 110 co-sponsors, the bill has yet to be scheduled for a vote.
In 2018 and the early part of 2019, there has been a flurry of interesting decisions from the Occupational Safety and Health Review Commission (“Commission”). The decisions have ranged from a case clarifying Secretary of Labor’s burden for a repeat citation to two decisions on the general duty clause, one sustaining a citation involving workplace violence and one reversing a citation on heat stress. Several of these decisions have given employers reason to rejoice. But with Commissioner Cynthia Atwood’s term ending at the end of April 2019 and Chairwoman Heather MacDougal’s announcement that she would be leaving the Commission, the Commission is now down to just one member, Commissioner James Sullivan, Jr.
On February 28, 2019, the Occupational Safety and Health Review Commission (OSHRC) issued a much anticipated decision in the case of Secretary of Labor v. A.H. Sturgill Roofing, Inc.
Under the Occupational Safety and Health Act of 1970 (OSH Act), employers have a right to be given the opportunity to accompany an OSHA compliance safety and health officer (CSHO) during an inspection of the workplace.
Alka Ramchandani-Raj and Corinn Jackson with Littler’s Workplace Policy Institute dive into the numerous regulations and bills pending in California concerning workplace safety and health. Alka offers both background of existing law and analysis of the safety measures, including proposals about lead poisoning prevention, Valley Fever training requirements, and an indoor heat illness prevention program.
Don’t Be Bringin’ on the Heartbreak: Are Statements Made During OSHA Informal Conferences Admissible?
The Occupational Safety and Health Administration (OSHA) has conducted an inspection of your plant after one of your employees amputated part of his finger trying to clean around a sprocket with the machine still running. OSHA issues a serious citation to your company for a machine guarding violation.
There is no disputing that taking a proactive approach to safety and ensuring compliance within your company is not only prudent – but critical – for employers. It is equally critical, however, that employers understand the benefits and potential liabilities that initiating these measures can create. This post will break down the “dos” and “don’ts” of internal safety audits.
OSHA Requests Information for Use of Powered Industrial Trucks in Maritime, Construction and General Industry
On March 11, 2019, OSHA issued a Request for Information (RFI) in the Federal Register seeking comments and information from stakeholders regarding the use of powered industrial trucks (PITs) for maritime (1915.120, 1917.43, 1918.65) construction, (1926.602(c), (d)), and general industries (1910.178). OSHA is considering revising current standards regarding powered industrial trucks and this information will assist the agency in determining what actions, if any, it will take in revising these standards.
On March 12, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Mine Safety and Health Administration, USCA Case No. 18-1116.
Employers do not often worry about the respiratory illness, Legionnaires Disease, but the occurrences have increased five-fold since 2000, and experts are unsure as to the reasons. OSHA takes Legionnaires Disease seriously and maintains a page on its www.OSHA.gov site. OSHA notes that Legionnaires Disease occurs in certain common workplace settings:
One of my recurrent business themes is the need for businesses to try to plan for unanticipated events that could devastate the business and destroy shareholder value.
The year 2018 saw the issuance of several noteworthy federal workplace safety and health decisions. Three of those decisions came in the cases of Secretary of Labor v. Angelica Textile Services, Inc.; United States v. Mar-Jac Poultry, Inc.; and Acosta v. Hensel Phelps Construction Co.
Carbon monoxide is known as a silent killer because it lacks any distinct taste or smell. It is the byproduct of combustion and can prove to be fatal. According to the Centers for Disease Control and Prevention (CDC) over 400 Americans die each year from accidental poisoning not caused by fires. As such, and as codified under 29 CFR Part 1917.24, testing for carbon monoxide is required along with establishing limits for the concentration of carbon monoxide.
On March 4, 2019, the U.S. Supreme Court held in BNSF Railway Co. v. Loos that a railroad’s payment to an employee for work time lost due to an on-the-job injury is taxable compensation under the Railroad Retirement Tax Act (RRTA).
If I Could Turn Back Time: Can Employers Find a Way to Correct an Erroneous Accident or Injury Report to OSHA and Avoid an Inspection?
An accident happens at your workplace, and an employee is injured. During the hectic response, incorrect information funnels its way up to the safety director or person charged with notifying OSHA of reportable injuries and accidents, and that person is told that it looks like the employee’s finger has been amputated or is admitted for in-patient hospitalization. Attempting to meet the statutory deadline, the safety director then reports to OSHA that an amputation or in-patient hospitalization has occurred.
Workplace Safety and Health Law Blog Sammy Hagar Says He Can’t Drive 55. OSHA Says Your Workers Can’t Drive Distracted.
According to the Occupational Safety and Health Administration (OSHA), motor vehicle crashes cost employers $60 billion annually in medical care, legal expenses, property damage, and lost productivity. Motor vehicle crashes are responsible for more worker fatalities than any other cause, including machine guarding and lock-out tag-out violations.
In this podcast, Frank Davis and Jeff Leslie discuss common OSHA citations issued in the construction industry, including citations related to fall protection, scaffolding, ladders, and eye and face protection. They will also discuss best practices for spotting potential issues and avoiding these citations.
The Occupational Safety and Health Administration (OSHA) is the government agency responsible for enforcing the whistleblower retaliation provisions of numerous laws protecting workers in a wide-range of industries.
On February 7, 2019 the Cranes and Derricks in Construction: Operator Qualifications final rule became effective, requiring employers using cranes in the construction industry to document their evaluation of their crane operators. That same day OSHA issued temporary enforcement guidance indicating that while it will still enforce the requirement that employers evaluate their operators before allowing them to operate cranes it is going to provide additional time for employers to begin to document the evaluations. According to the memorandum issued to all Regional Administrators and State Plan Designees,
In this episode, Ron Chapman and Frank Davis cover some of the most common OSHA citations issued to manufacturers, from hazard communications to respiratory protection, and more. They will also discuss best practices for spotting potential issues and avoiding these citations.
In any major city (and, actually, everywhere), construction is a way of life. Cities continuously expand, renovate, and build. With more job sites has come more scrutiny and oversight from OSHA. OSHA’s stated mission includes to “assure safe and healthy working conditions for working men and women by setting and enforcing standards.” When employers fail to abide by those standards, they face penalties – and, in 2019, the maximum penalties again went up.
OSHA Eliminates the Requirement for Certain Employers to Electronically Submit Information from Forms 300 and 301 to OSHA
On January 25, 2019, OSHA issued a final rule eliminating the requirement that employers with 250 or more employees electronically submit information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) to OSHA each year. These establishments, however, are still required to electronically submit information from Form 300A (Summary of Work-Related Injuries and Illnesses) to OSHA through a secured OSHA website. Collection of calendar year 2018 information from the OSHA Form 300A began on January 2, 2019, and the deadline for electronic submissions is March 2, 2019. OSHA maintains that its final rule will protect sensitive worker information and decrease the burden on employers.
Since I watched The American Factory and Untouchable (first Weinstein #METOO documentary) at the Sundance Film Festival, I’ve been sensitive to the workplace lessons presented by well made films.
Congress took employers by surprise when it increased Occupational Safety and Health Administration (“OSHA”) penalties nearly 80 percent in 2016. Today, a Serious violation can fetch a maximum penalty of $13,260, and a Willful or Repeat violation can cost up to $132,598. Citations often include multiple items, which can multiply these figures.
Element 4 of the Unpreventable Employee Misconduct Defense: Enforcement of Work Rules Through Disciplinary Action When Violations are Discovered
In the final part of this four-part series, we examine the fourth element an employer must establish to successfully raise the “unpreventable employee misconduct” affirmative defense in response to an OSHA citation: that the employer effectively enforces its safety rules upon discovering any violations. Simply stated, this last element requires that an employer discipline its employees for violating any company safety rules. As with the other elements of this affirmative defense, documentation is critical.
The U.S. Department of Labor (DOL) has published a final rule that increases civil monetary penalties the DOL assesses and enforces, as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The increases apply to penalties assessed after January 23, 2019 under the Occupational Safety and Health Act (OSH Act), which the DOL is responsible for enforcing. The rule amends the OSH Act's penalty structure as follows:
OSHA Issues Final Rule Rescinding Certain Recordkeeping Requirements and Clarifying Guidance on Drug Testing and Incentive Programs
The Occupational Safety and Health Administration (OSHA) recently issued a final rule rescinding major portions of its electronic reporting rule. Specifically, the rule (1) amends the recordkeeping rules for employers with 250 or more employees; (2) further clarifies OSHA’s position on post-incident drug testing and workplace incentive programs; and (3) reaffirms OSHA's position that certain injury and illness data can be used to expand the scope of an on-site inspection. The rule takes effect on February 25, 2019.
On January 30th the Senate Health, Education, Labor and Pensions (HELP) Committee announced that it would hold a hearing on February 6th for several of President Trump’s nominees, including Scott Mugno, the President’s nominee for Assistant Secretary of Labor for OSHA.
Large employers will no longer be required to submit certain workplace injury and illness information to the Occupational Safety and Health Administration (OSHA).
On January 24, 2019, citing a need to protect worker privacy, the Occupational Safety and Health Administration (OSHA) issued a final rule eliminating the requirement that businesses with 250 or more workers electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year. These employers must keep such records on-site. They still are required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The deadline for electronic submissions for calendar year 2018 information is March 2, 2019.
On January 25, 2019, the Occupational Safety and Health Administration (OSHA) published in the Federal Register its revisions to its electronic recordkeeping rules. As expected, OSHA eliminated the requirement for employers to electronically submit Forms 300 and 301 to OSHA. The rule, located at 29 C.F.R. Section 1904.41, still requires employers in the following two categories to electronically submit Form 300A to OSHA annually: (1) establishments with 250 or more employees; and (2) establishments with 20 to 249 employees in certain industries designated by OSHA. The rule also requires those employers to submit their Employer Identification Numbers. In other words, OSHA generally adopted as the final rule what it issued in its proposed rule back in July 2018. As expected, OSHA made no effort to rescind or reverse Section 1904.36, which allows the agency to issue citations for employee whistleblower discrimination or retaliation without a complainant and without regard for the Occupational Safety and Health Act of 1970’s Section 11(c) requirement that whistleblower complaints be filed by a complainant within 30 days of an adverse action.
OSHA has issued a final rule that rescinds the prior requirement for companies with 250 or more employees to electronically submit the OSHA 300 log and OSHA Form 301. These companies will still be required to submit the OSHA Form 300A (the annual summary), along with its Employer Identification Number (EIN). The deadline to submit the Form 300A is March 2, 2019.
Today OSHA published the final rule revising the Improve Tracking of Workplace Injuries and Illnesses regulation promulgated under the Obama administration. The final rule aligns with the proposed rule and rescinds the requirements for establishments with 250 or more employees to electronically file information from OSHA Forms 300 and 301. As is currently the requirement, these establishments will continue to submit information from their Form 300A. The final rule now requires all covered employers to electronically file submit through OSHA’s Injury Tracking Application (ITA) only the 300A Form.
On January 22, 2019, the Occupational Safety and Health Administration (OSHA) published Frequently Asked Questions (FAQs) to provide guidance to general industry employers on OSHA’s final rule regulating occupational exposure to respirable crystalline silica in general industry. The rule requires employers to reduce exposures to respirable crystalline silica to below a permissible exposure limit (PEL) of 50 µg/m3 measured as an 8-hour time-weighted average (TWA). Other requirements of the standard are triggered if exposures exceed an action level (AL) of 25 µg/m3 measured as an 8-hour TWA. OSHA developed the FAQs in consultation with industry and union stakeholders. The FAQs provide important interpretations of several of the provisions in the rule and provide employers with additional flexibility for compliance.
While much of the rest of the government is shutdown, the Department of Labor (“DOL”) is hard at work. OSHA which is an agency within DOL is one of the few agencies that is fully funded and operational. On January 15th, OSHA issued a pre-published version of its Federal Register notice for the increase in civil penalties for violations of OSHA standards and regulations to adjust for inflation.
Employers will be facing higher penalties from the federal Occupational Safety and Health Administration (“Fed-OSHA”) in 2019. On January 15, 2019, Fed-OSHA announced that it plans to increase the maximum penalty an employer can be issued for serious and other than serious citations to $13,260, and the highest amount that can be issued for repeat and willful violations to $132,598. Fed-OSHA’s announcement regarding the increases can be found here: https://www.osha.gov/penalties/2019InflationAdjustments.pdf and a chart containing all increases by the agency is below:
To get the attention of CEO’s and upper level management, one must focus the conversation on the company’s bottom line. Often times, discussions of workplace safety involve conversations about increased expenses and red tape. However, the struggle to promote the need for additional workplace safety can be made easier if the conversation is focused on terms that CEO’s and management understand and are excited to implement. CEO’s and upper level management “relate to dollars and cents. They don’t relate to incident rates,” says Terry Hart, CSP, Director of Construction Safety at Marley Cooling Tower Co. Convincing management that a safe workplace helps, rather than hinders, the company’s bottom line is an effective way to get management to “buy in” for safety.
What a Partial Government Shutdown Would Mean for Workplace Safety Enforcement: Is OSHA in “The Final Countdown”?
With the threat of a partial government shutdown looming on December 21, employers are left wondering which government agencies will be impacted if the shutdown occurs. Presently, departments in the following areas will be impacted by a partial government shutdown: Agriculture, Commerce, Justice, Homeland Security, Interior, State, Transportation and Housing and Urban Development. Independent agencies like NASA and the Food and Drug Administration will also be restricted to essential personnel.
Most of the media attention paid to autonomous vehicles relates to the capabilities of passenger vehicles. But other companies are moving ahead with producing autonomous vehicles for use in commercial settings, such as the mining industry.
In 2019, general counsels can expect the debate to rage on over the Occupational Safety and Health Administration’s (OSHA) proposal to rescind the requirement that large employers electronically submit information from OSHA Forms 300 and 301, which contain individual employees’ private medical history data. The agency introduced this proposal at the end of July 2018, and the comment period closed on September 28, 2018, with more than 1,800 comments submitted.
Holiday plates overflow, we are more stressed, tired, rushed, and a little inclined to cut corners and bend a few rules. Although there tend to be fewer work accidents this time of year, it is no time to ignore those basic practices we rely on all year round to ensure those around us make it home safely to enjoy the holiday.
In September, the Office of Inspector General (OIG) issued a draft report criticizing OSHA for not having appropriate controls in place to ensure employers report severe injuries and abate hazards. The September OIG report recommended to OSHA that the agency develop formal guidance and train staff on how to detect and prevent underreporting, consistently issue citations for late reporting, clarify some of its guidance and emphasize the need to conduct inspections for all incidents classified as Category 1.
On November 16, 2018, Representative Joe Courtney (D-CT) introduced House Resolution 7141, the Workplace Violence Prevention for Health Care and Social Service Workers Act. The bill would force the Occupational Safety and Health Administration (OSHA) to issue an interim final rule on workplace violence requiring “certain employers in the healthcare and social service sectors, and certain employers in sectors that conduct activities similar to the activities in the healthcare and social service sectors, to develop and implement a comprehensive workplace violence prevention plan.” The bill broadly defines workplace violence, without regard to intent, to specifically include:
OSHA reinstated the Site Specific Targeting Program (SST) effective October 16, 2018. The SST, OSHAs main site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees, will be based on the 300A data associated with a 2017 rule published by the US Department of Labor, requiring certain employers to publicly E-File injury and illness data, beginning in calendar year 2016.
The Occupational Safety and Health Administration (OSHA) recently announced its annual list of the top 10 safety violations for fiscal year 2018 (October 1, 2017, through September 30, 2018). The list, based on preliminary data, was announced during the National Safety Council Congress and Expo held in Houston, Texas.
Workplace safety is moving in the right direction, according to employers and the Bureau of Labor Statistics (BLS). Based on an annual survey, BLS estimates that private industry employers had 45,800 fewer cases of nonfatal injuries and illnesses among full-time employees in 2017 as compared to the year before.
What if one or your workers – who should and does know better – violates an OSHA standard? Shouldn’t an employer be able to defend itself from the violation even when there is no dispute that the underlying conduct occurred? The answer is yes, provided the four elements of the “unpreventable employee misconduct” defense are met.
OSHA: Legal Developments and Defense Strategies OSHA Relaxes Position regarding Safety Incentive Programs and Post-Incident Drug Screening
On October 11, 2018, OSHA issued a Memorandum (the Memorandum) ostensibly clarifying its position on post-accident drug testing and employee incentive programs. Any fair reading of the Memorandum, however, shows that OSHA is actually doing a lot more than simply “clarifying” its position – in some respects, it is completely reversing course. This is especially true with respect to safety incentive programs. And employers should take note.
The Occupational Safety and Health Administration (OSHA) has issued a memorandum clarifying that anti-retaliation provisions of a workplace injury and illness reporting rule do not prohibit the use of either safety incentive programs or post-incident drug testing policies. Instead, employers must implement such programs with caution to ensure the programs do not discourage employees from reporting workplace injuries or illnesses.
On Oct. 11, 2018, the Occupational Health and Safety Administration (OSHA) sent a Standard Interpretation Memorandum to its regional administrators and to state plan designees clarifying its position on post-incident drug tests and safety incentive programs. According to the memo, such tests and programs are permitted if properly written and implemented.
On October 9, 2018, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court decision to limit the scope of an inspection sought by the Occupational Safety and Health Administration (OSHA). In this significant decision for employers, the court of appeals held that OSHA may not conduct a facility-wide or “wall-to-wall” inspection based on a reported accident and the employer’s OSHA 300 logs alone.1
About Face: OSHA Clarifies that Safety-Incentive Programs and Post-Incident Drug/Alcohol Testing ARE Permissible
On October 11, 2018, in an about-face on prior guidance, the Occupational Safety and Health Administration (OSHA) issued a significant Standard Interpretation Memorandum regarding safety-incentive programs and post-incident drug/alcohol testing. In the new Memorandum, OSHA shifts course and clarifies that such programs and testing are permitted if properly drafted and enforced.
It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. Earlier this week the fall semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
Most safety incentive programs and post-incident drug testing policies will not be considered retaliatory and unlawful under a new Standard Interpretation from the Occupational Safety and Health Administration (OSHA).
OSHA issued a new Site Specific Targeting (SST) Plan effective October 16, 2018. Unlike prior versions, this new SST Plan utilizes the 2016 300A data that many employers electronically submitted in December 2017. The new SST Plan is, therefore, dubbed the SST-16.
Eleventh Circuit Limits OSHA’s Ability to Use OSHA Form 300 Logs to Obtain an Inspection Search Warrant
On October 9, 2018, the United States Court of Appeals for the Eleventh Circuit upheld a district court’s order quashing an Occupational Safety and Health Administration (OSHA) inspection warrant. OSHA unsuccessfully challenged the district court’s finding that the agency lacked administrative probable cause based on injuries noted on a company’s OSHA Form 300 logs. While the decision is unpublished, its sound reasoning may impair OSHA’s ability to rely upon 300 logs as the basis for obtaining an administrative search warrant. United States v. Mar-Jac Poultry, Inc., No. 16-17745.
Last week the U.S. Court of Appeals for the Eleventh Circuit affirmed a lower court’s order quashing an administrative warrant for the inspection of a poultry processing plant. USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018). In February 2016, an employee of Mar-Jac Poultry, Inc. (“Mar-Jac”) was injured while repairing an electrical panel requiring the employee to be hospitalized. Pursuant to Section 1904.39, Mar-Jac reported the hospitalization to OSHA.
OSHA Clarifies Its Position On Post-Accident Drug Testing; States That “Most Instances of Workplace Drug Testing Are Permissible”
In a memorandum to Regional Administrators dated October 11, 2018, OSHA clarified the agency’s position as to whether certain types of drug testing would be considered violations of 29 C.F.R. §1904.35(b)(1)(iv). That regulation prohibits employers from discharging or discriminating against an employee for reporting a work-related injury or illness.
On September 27, 2018, the U.S. Department of Labor (DOL) published a notice of proposed rulemaking expanding the employment, training, and apprenticeship opportunities for 16- and 17-year-olds in healthcare occupations by removing the prohibition on teen employees operating patient lifts. Currently, the DOL’s Child Labor Hazardous Occupations Order No. 7 bars teen employees from working in occupations that require the operation of power-driven patient lifts, treating these types of lifts essentially as equivalent to construction equipment. In the proposed rule, however, the DOL acknowledges that patient lifts differ substantially from construction equipment such as forklifts, backhoes, and cranes.
We've waited for over a year to learn if the 11th Circuit Court of Appeals would uphold an earlier court decision saying that OSHA could not expand an injury-based inspection by arguing that injury records and an a Regional Emphasis Program justified the expansion. Not surprisingly, OSHA had appealed the earlier decision.decision.
We regularly remind employers that third parties, such as unions, and social justice and environmental groups, will use safety as a club to embarrass and bring pressure on a company. Sometimes, these third parties use workplace safety as such an issue even when it conflicts with other tenants of left-leaning groups, such as environmental responsibility or solar power.
The U.S. Occupational Safety and Health Administration (OSHA) recently announced an update to its National Emphasis Program (NEP) on preventing trenching and excavation collapses.
While President Donald Trump’s choice to lead the Occupational Safety and Health Administration (OSHA) is awaiting Congressional confirmation, key agency decision makers are listening to the construction industry.
Three years after introducing new severe injury reporting requirements that require employers to report any work-related amputation, in-patient hospitalization, or loss of an eye to OSHA within 24 hours of the incident, and fatalities within 8 hours, the Office of the Inspection General (OIG) conducted an audit to determine if OSHA had effectively implemented these new requirements.
For me, the anniversary of 911 is principally for remembering and paying respect to the 2996 victims at the Twin Towers, the Pentagon and that Pennsylvania field, as well as the many individuals who have lost their life and limbs since that day protecting their fellow citizens. Thousands in Iraq, Afghanistan and others in hot spots around the world … or in the day to day accidents that are inevitable to the operation and training of our military. (See, The Cost of War Since September 11, 2001 and The DOD Casualty Report) I realized the other day that because of IEDs, it is now common to see young men and women with high-tech artificial legs. The list could go for pages if we consider emergency responders, police, various civil servants and countless others.
In response to OSHA’s announcement in May this year that the agency would not require the electronic submission of 300 Logs or 301 Forms for employers with establishments of 250 or more employees, Public Citizen, a consumer rights advocacy group, filed a lawsuit in the U.S. District Court for the District of Columbia challenging OSHA’s suspension of the requirement to electronically submit the 300 Log or 301 Forms.
While recently meeting with a group of contractors, I noticed that three large general contractors were requiring their employees to wear safety helmets instead of traditional hardhats, despite the approximately $120 cost per helmet. Futuristic Kask helmets were the helmet of choice. Kask states that the helmets satisfy ANSI Z89.1-2014. Technical specs. Arguably the most important aspect of the helmet was the chin straps.
Your employees could be at a heightened risk for developing an addiction to opioids after a workplace injury. Now is the time to take measures to minimize the risk of this happening to them.
Executive Summary: On July 27, 2018, the Occupational Safety and Health Administration (OSHA) issued a news release stating that it has issued a Notice of Proposed Rulemaking to “better protect personally identifiable information or data that could be re-identified with a particular individual by removing provisions of the ‘Improve Tracking of Workplace Injuries and Illnesses’ rule. OSHA believes this proposal maintains safety and health protections for workers, protects privacy and reduces the burdens of complying with the current rule.”
The Occupational Safety and Health Administration (OSHA) has issued a Notice of Proposed Rulemaking (NPRM) to remove provisions of the "Improve Tracking of Workplace Injuries and Illnesses" rule. The agency said that the changes are meant to protect employees' personally identifiable information or data that could be re-identified with a particular individual. Observers expected these changes following OSHA's announcement in the 2017 regulatory agenda that it would review the Obama-era rule.
On Monday, July 30, 2018, the Occupational Safety and Health Administration (OSHA) issued a proposed rule to abolish much of the existing electronic reporting obligations for establishments with 250 or more employees. Under the proposed rule, OSHA would drop the requirement for establishments with 250 or more employees to electronically submit injury or illness data (OSHA Form 300) or incident reports (OSHA Form 301).
On July 30, 2018, the Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) in the Federal Register seeking comments on a proposed measure that would partially rescind the 2016 amendments to its recordkeeping rule. The 2016 amendments required establishments with at least 250 employees, or with at least 20 employees in a high-risk industry, to electronically submit their illness and injury records to OSHA annually, beginning in 2017. However, OSHA was not accepting OSHA 300 and 301 forms on its portal for the July 1, 2018, deadline.
Today OSHA formally published a Notice of Proposed Rulemaking (NPRM) in the Federal Register revising the Obama-era regulation, Improve Tracking of Workplace Injuries and Illnesses. The proposed rule rescinds the requirement for establishments with 250 or more employees to electronically submit information from the OSHA 300 Log and 301 Form and adds a requirement for covered establishments to include the Employer Identification Number (EIN) with their submissions.
OSHA Update: Court of Appeals Upholds Employer's Criminal Liability and Maximum Fine in Employee's Death
On July 17, 2018, the U.S. Court of Appeals for the Eighth Circuit affirmed a verdict that had found an employer criminally liable for an employee's fatal fall. Declining to overturn the lower court's decision, the three-judge panel found that prosecutors presented sufficient evidence to support the company’s conviction for willfully violating safety regulations and causing the worker’s death.
Put simply, OSHA has suspended the July 1 requirement that covered Employers must submit the detailed OSHA Form 300 detailing all 2017 recordable injuries, and the individual Form 301 (First Report of Injury) for all recordable 2017 injuries.
Celebrity Apprentice: Head of OSHA Edition. Which Celebrities Are Qualified to Lead the Occupational Safety and Health Administration?
On October 27, 2017, Scott Mugno was nominated by President Donald Trump to lead the Occupational Safety and Health Administration (OSHA) as the agency’s assistant secretary of labor. Mugno is the former head of Federal Express’ Safety, Health and Fire Protection division, a strong believer in employee safety, and is extremely qualified for this post. Unfortunately, however, Mugno has not yet been confirmed by Congress to take the position and OSHA remains without a leader.
In a May post we noted that OSHA had moved closer to publishing a proposed rule revising the Obama-era regulation, Improve Tracking of Workplace Injuries and Illnesses by submitting the proposed rule to the Office of Management and Budget (OMB) for review under Executive Order 12866. This review was completed yesterday, July 23, and now signals that OSHA has jumped the final hurdle before it can publish a new proposed rule. In the Spring Regulatory Agenda, OSHA identified July as its target date for issuance of a Notice of Proposed Rulemaking. OMB’s completition of its review suggests that OSHA will likely issue a proposed rule in the Federal Register soon, possibly making its projected timeframe.
When one hears about a workplace shooting, it’s easy to demand a “Zero Tolerance” rule against workplace violence. It’s understandable that after the staggering and even criminal revelations of the #METOO Movement that employers would want to nip harassment and discrimination in the bud before it rises to the level of unlawfulness. And in the safety setting, a single violation of Lock Out or Confined space entry procedures or removal of a guard could result in multiple deaths or grievous injuries. No violation is acceptable.
It might sound crazy, but the Occupational Safety and Health Administration (OSHA) may now be receiving whistleblower complaints over the phone. This follows a recent ruling from a federal court in Wisconsin, which made it easier for employees to file whistleblower complaints against their employers.
Part II - Corporate campaigns - first the press and then the OSHA complaints....
In 2016, the Occupational Safety and Health Administration (OSHA) amended its recordkeeping rule to require that certain establishments electronically submit their illness and injury records annually, beginning in 2017. For the first year, covered establishments were only required to submit their OSHA Form 300A. The next round of submissions is due on July 1, 2018 and, in addition to the OSHA 300As, would have included the submission of OSHA 300 Logs and OSHA 301 Incident Reports for certain covered establishments.
In its latest Regulatory Agenda, the Occupational Safety and Health Administration (OSHA) indicated that it was undergoing rulemaking to revise the “Improve Tracking of Workplace Injuries and Illnesses” regulation promulgated under the Obama Administration. OSHA noted it was considering deleting the requirement for employers with 250 or more employees at an establishment to electronically submit its 300 Log, 301 Forms, along with the 300A Form.
Don’t Be Late! Recent Decisions Remind Employers that OSHA Citations May Become Final if Not Timely Contested
Two recent cases should remind employers to contest OSHA citations quickly to prevent the citations from becoming final. It’s an uphill battle if your notice of contest is submitted late.
For construction employers facing uncertainty on exactly how the Occupational Safety and Health Administration (OSHA) is enforcing the new silica standard in Construction, we now have a little bit of data that helps shed some light on this mystery. OSHA began enforcing the silica rule in construction on October 23, 2017. As of April 23, 2017, OSHA and State Plans that have adopted the silica rule (a few have not yet done so) have issued 117 violations. OSHA appears to rarely cite violations of the silica standard by themselves; citations are usually accompanied by violations of other standards, such as the fall protection standards. Here are some interesting statistics on OSHA’s first six months of enforcement of the silica standard in construction.
OSHA is a step closer to publishing a proposed rule revising the Obama-era regulation, Improve Tracking of Workplace Injuries and Illnesses. OSHA’s proposal has been submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866. This is the final internal review before the proposal gets published in the Federal Register and signals that OSHA’s Notice of Proposed Rulemaking may be out by late summer.
Administrative Law Judges are increasingly exercising their discretion to waive mandatory settlement conferences for Occupational Safety and Health Administration (OSHA) citation contests with large penalties. The increased penalties that OSHA can now levy may be the reason.
It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. Last week the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
Today marks the first day of OSHA’s 5th annual National Stand-Down. The week-long event aims to focus attention on the fact that “Fatalities caused by falls from elevation continue to be a leading cause of death for construction employees, accounting for 370 of the 991 construction fatalities recorded in 2016 (BLS data).”
In a news release issued today, OSHA notified employers in state plans that they must submit their injury and illness data through OSHA’s portal even if their state has not yet adopted the new requirements of the “Improve Tracking of Workplace Injuries and Illnesses” regulation. According to OSHA,
State Plans Must Abide: Fed-OSHA Fixes Alleged “Error” and Mandates Electronic Reporting of Injuries and Illnesses in All State Plan States
On April 30, the Occupational Safety and Health Administration (Fed-OSHA) reversed course and issued a press release announcing that employers in all state-plan states must implement Fed-OSHA’s new electronic recordkeeping and reporting rule.
The Occupational Safety and Health Act (OSH Act) authorizes the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor to conduct inspections at worksites within its jurisdiction to enforce the safety and health laws promulgated pursuant to the OSH Act. With the U.S. Senate still not confirming President Trump’s nomination of Scott Mugno as the Assistant Secretary of Labor for Occupational Safety and Health, we do not yet know the future direction of OSHA’s enforcement strategy. Thus, for now, it is best to assume no change in direction.
Eleventh Circuit Highlights Importance of Safety Training in Affirming Willful Violation of OSHA Standard
The Eleventh Circuit Court of Appeals recently had the opportunity to remind employers not to ignore training employees on safety. Martin Mechanical Contractors, Inc. v. Secretary, U.S. Department of Labor, No. 17-12643 (March 27, 2018).
During the April 12th U.S. Senate Committee on Appropriation’s Subcommittee Hearing to review the FY2019 Department of Labor Budget Request, Labor Secretary Alexander Acosta was questioned on OSHA’s injury and illness record-keeping regulation passed under Obama’s administration, Improve Tracking of Workplace Injuries and Illnesses.
With the Occupational Safety and Health Administration’s (OSHA) silica standard already in effect for the construction industry and about to go into effect in June of 2018 for general industry, many employers are anxious about whether their programs will pass muster with federal and state OSHA officials. But if you’re in Maryland, worry not. Two years after then secretary of labor Tom Perez heralded the issuance of a final rule on Occupational Exposure to Respirable Crystalline Silica at the International Union of Bricklayers and Allied Craftworkers’ John J. Flynn BAC/IMI International Training Center in Bowie, Maryland, the “Old Line State” has still not adopted a corresponding silica standard.
Scott Mugno’s confirmation to head OSHA appears to be one of three key Department of Labor nominees caught up in political arm wrestling. Republicans are blaming Democrats for delaying the process by drawing out debates to the full 30 hours permitted by the Senate Rules. Senate Majority Leader Mitch McConnell (R-KY) voiced his frustration on April 9th warning that “[t]he Senate’s workweek will not end until all of these amply qualified nominees are confirmed.” It should also be noted that a Senate vote on Mugno has yet to be calendared.
With what has now become a regular ritual, lawmakers rushed to pass a $1.3 trillion omnibus bill on the last possible day to avoid a government shutdown. The 2,300-page bill was passed by the House last Thursday by a vote 256-167 with many Democrats joining Republicans to support the bill.
OSHA Announces Enforcement Policy for Failing to Electronically Submit Required Injury & Illness Records
Under OSHA’s Improve Tracking of Workplace Injuries and Illnesses regulation, certain employers covered by OSHA’s recordkeeping requirements must annually file either their 300A or their 300A, 300 Log and 301 forms depending on the establishment size and other criteria. For 2017, all employers covered by the regulation were required to file only their 2016 300A form.
Members of a key Congressional committee recently made clear that it is looking to nudge the Occupational Safety and Health Administration (“OSHA”) into a more cooperative direction. Some industry leaders have observed that, under the Trump administration, OSHA has begun to do just that.
OSHA Issues Guidance on How to Cite Employers That Failed to Electronically Submit Injury and Illness Information
On February 21, the Occupational Safety and Health Administration (OSHA) issued new interim enforcement procedures, provided below, regarding failure to submit electronic injury and illness records.
Earlier this month OSHA published a guidance document for the tree care industry, “Solutions for Tree Care Hazards.” The two page publication addresses five major hazards for the tree care industry, including traffic control, chippers, aerial lifts, power lines and drop zones for falling objects.
Can OSHA Look Back Farther than 5 Years for Repeat Citations? Recent Court Decision Reaffirms that there Is No Limitation on OSHA’s Repeat Violation Period
Until 2015, it was the practice of the Occupational Safety and Health Administration (OSHA) to look back only three years to establish “repeat” violations under the Occupational Safety and Health Act (OSH Act). In 2015, OSHA increased that period to five years. The United States Court of Appeals for the Second Circuit reminded us this week that OSHA is actually not bound by any temporal limitation to establish repeat violations.
A 2017 report on fatal workplace injuries shows that fatalities jumped 7 percent in 2016. The Bureau of Labor Statistics' Census of 2016 Fatal Occupational Injuries reported 5,190 workplace fatalities in 2016, compared to 4,836 in 2015. It also noted an increase in deaths related to opioid use.
Employers covered by OSHA’s recordkeeping rule are required to prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” beginning February 1 and keep the form posted until April 30. The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.
Starting the year with a bang, the Cal/OSHA Division said it intends to finalize several new standards this year, including on indoor heat illness prevention. It also intends to release new workplace violence prevention for general industries regulations and new regulations to affect the Cannabis industry. The agency has scheduled three advisory meetings within the next month.
Folks who follow my writing know that of the many groups to which I speak, the AGC National Safety Committee is my favorite. I love the industry and I value the clients and contacts who have become friends, even Bob Emmerich, Jim Goss, Bo Cooper, Rick Reubelt, Carl Heinlein, Kevin Turner, Tommy Lee, and of course, our AGC leader, Kevin Cannon.
Not only is the Occupational Safety and Health Administration (OSHA) continuing to crack down on employers suspected of retaliating against employees who blow the whistle and will not hesitate to pursue litigation on behalf of employees, OSHA considers lawsuits against whistleblowers to constitute adverse action for purposes of finding unlawful retaliation.
OSHA Anticipates More Changes to the Electronic Recordkeeping Rule: What Does It Mean for Employers?
The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017, and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.
Most folks in the safety community know Jordan Barab, the former Obama era Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017. You can read Jordan’s take on OSHA, MSHA, safety and anything related to employees and politics on Twitter at @jbarab. His email is firstname.lastname@example.org. I am unapologetically a Management Labor Lawyer and serve as an advocate for Employers, so it may surprise my readers that I am going to post his comments to one of my recent posts.
American Voters Got Coal in their Stocking from Senate Dems: Over 100 Nominees Must be Re-nominated.
Now career government workers cannot do their jobs because dozens of empty leadership positions remain unfilled. Before you complain that some of Trump’s nominees are underqualified – you are correct – consider these facts:
Employers covered by the recordkeeping requirements in Section 1904 are reminded that Friday, December 15th is the DEADLINE to electronically submit their 2016 300A. This requirement applies to establishments with 250 or more employees and to establishments in certain high-risk industries with 20 or more but less than 250 employees.
It’s that time of year again: for employers to celebrate the successes of the prior year and make plans and resolutions for the new one. But OSHA and MSHA are making New Year’s resolutions, too, and employers are well-advised to consider what actions these agencies may take in 2018 that could affect their businesses.
Although the Department of Labor under new Labor Secretary Alex Acosta has indicated that it will be scaling back on the broad interpretation of joint employer for purposes of determining enforcement liability, on November 6, 2017, OSHA filed an appeal to the U.S. Court of Appeals for the Fifth Circuit seeking to preserve the agency’s multi-employer citation policy which has been in place for decades.
Employers covered by federal workplace safety recordkeeping regulations have an additional two weeks to electronically file their 2016 injury and illness data. The Occupational Safety and Health Administration (OSHA) has extended the date by which employers must electronically report their Form 300A data through the agency's Injury Tracking Application (ITA) to December 15, 2017.
On November 21, 2017, the Occupational Safety and Health Administration (OSHA) extended the date by which employers must electronically report injury and illness data through the Injury Tracking Application (ITA) (https://www.osha.gov/injuryreporting/index.html) to December 15, 2017.
Today OSHA announced that it will delay the electronic submission requirements for employers covered by the recordkeeping requirements in Section 1904 until December 15, 2017. Last year OSHA finalized its Improve Tracking of Workplace Injuries and Illnesses regulation, which established new requirements for certain employers to electronically submit their injury and illness recordkeeping forms via a secure website. Specifically, employers covered by OSHA’s recordkeeing requirements must either file their 300A or their 300A, 300 Log and 301 Forms depending on the establishment size and other criteria.
On November 9, 2017, OSHA published a Final Rule further extending by one year the employer duty to ensure the competency of crane operators involved in construction work. Previously, this duty was scheduled to terminate on November 10, 2017, but is now extended to November 10, 2018. OSHA is also further extending the deadline for crane operator certification for one year to November 10, 2018.
I Wonder How Many Other Hollywood Personalities Wish that they had Promised their Boss a Missouri Whooping?
I am not encouraging workplace violence, even for individuals who may deserve a good old fashioned whooping. However, it is worth noting that one of the few Hollywood celebrities to have largely survived the onslaught of harassment claims with some dignity is Brad Pitt. As everyone knows, while dating a young Gwyneth Paltrow, Brad Pitt reportedly confronted Harvey Weinstein, told him to stop harassing Miss Paltrow, and threatened a “Missouri Whooping.” Given the story, I tend to suspect that he actually promised a “Missouri Ass Whipping” (pardon my language).
We encourage larger companies to establish a committee to meet every six to twelve months to engage in “What-if” risk planning. If we have learned anything this year, it’s that businesses face more unexpected risk than ever before.
On Monday, October 27, 2017, President Trump nominated Scott Mugno, currently the vice-president for safety at FedEx Ground, to be the new head of the Occupational Safety and Health Administration (OSHA).
Scott Mugno, a vice president in charge of safety at FedEx Ground, has been nominated to lead the Occupational Safety and Health Administration (OSHA). In nominating Mugno as Assistant Secretary of Labor for Occupational Safety and Health, President Trump continues a pattern of appointing federal agency heads who are willing to scale back regulations.
On October 19, 2017, the Occupational Safety and Health Administration (OSHA) issued Interim Enforcement Guidance for enforcing the Respirable Crystalline Silica in Construction Standard, 29 CFR 1926.1153. OSHA began enforcing the Silica in Construction Standard on September 23, but announced a 30-day "grace period" for construction employers making good faith attempts to comply with the new standard. With the grace period expiring on October 23, construction employers had little idea how OSHA intended to enforce the standard. The new Interim Enforcement Guidance sheds some new light on the subject.
The Oct. 11, 2017, webinar in our Workplaces that Win certificate series consisted of a safety and health update. During the event, we discussed topics that included:
Late last Friday, the White House issued a press release announcing President Trump’s intention to nominate several more key administration officials, including Scott Mugno as Assistant Secretary of Labor, Occupational Safety and Health.
Full enforcement with the Occupational Safety and Health Administration’s new respirable crystalline silica rule in the construction industry began on October 23, 2017, according to the agency. The silica rule is one of the most comprehensive health standards ever issued for the construction industry and significantly reduces the Permissible Exposure Limit (PEL) for crystalline silica.
We’ve had a difficult Summer and Fall ...Hurricanes, the Las Vegas shooting, California fires... and now the firestorm about Presidents contacting family members whose loved ones were killed in battle. Many people have had to deal with friends and coworkers who lost someone.
On August 16th we reported that OSHA had suspended user access to its new Injury Tracking Application (“ITA”) that serves as the web portal for the submission of injury and illness information under OSHA’s “Improve Tracking of Workforce Injuries and Illnesses” rule. The suspension followed a warning by the Department of Homeland Security alerting OSHA to a possible security breach.
The Occupational Safety and Health Administration has announced the Top 10 most frequently cited alleged violations for fiscal year 2017, which ended September 30. The list changes little from year to year, but this year violation number nine, “Fall protection – training requirements,” is new. The top five violations remained identical to the list for FY 2016.
OSHA recently released the top ten violations for fiscal year 2017, which ended September 30. Generally, this list does not change much from year to year with the top three violations always being fall protection, hazard communication and scaffolding. OSHA noted that not all violations had been added to its reporting system but that the list was not expected to change.
OSHA penalties can be costly. In fact, a single “repeat” or “willful” violation can result in a penalty of $126,749. And, if you have multiple violations, that number can increase significantly. This article addresses measures any employer can implement to minimize the risk of costly penalties while—at the same time—promote the most important goal which is to provide a safe work environment for employees.
According to a recent report by the U.S. Department of Labor’s Bureau of Labor Statistics (BLS), women are less likely than men to incur workplace injuries, but the injuries reported by women are disproportionately unique to female employees. In the following four questions and answers, we go behind the numbers to take a closer look at what the data means.
Many companies open certain meetings with a “Safety Minute.” Often, the home office develops weekly or daily Safety Minutes for crews to use at pre-work meetings. Ideally, the Company’s leadership requires other meetings to open with a Safety Minute. Some companies mandate that all meetings open with a Safety Minute. Given our society’s fixation with meetings, we could be talking about a great many Safety Minutes.
Any new presidential administration is likely to bring a new philosophy, vision, and focus to a variety of issues—including workplace safety and health. More than 200 days into the Trump presidency, we take a look below at some of the top developments in OSHA thus far in 2017.
Tomorrow is the much-awaited Eclipse and employers are beginning to worry that they may not have taken all appropriate steps to protect their employees. Shockingly, OSHA does not maintain a Workplace Eclipse Safety Standard. Accordingly, employers should analyze the hazards presented by an Eclipse as they would any other hazard at the workplace. Even if spiders, snakes and poison ivy are universal, employers nonetheless protect their employees from these hazards when present in the workplace.
On Monday we blogged about the availability of the new OSHA Injury Tracking Application (“ITA”) that serves as the web portal for the submission of injury and illness information (300 Logs, 301 Forms and 300A Forms) under OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule (aka Electronic Recordkeeping rule). Yesterday, OSHA suspended user access to the ITA after the Department of Homeland Security notified the Department of Labor of a potential compromise of user information. It appears that only one company has been affected by this breach of security and that company has been notified.
On June 26, 2017, the Occupational Safety and Health Administration (OSHA) announced the return of its heat illness prevention campaign: “Water. Rest. Shade.” As part of the seventh annual heat illness prevention campaign, OSHA’s website outlines the dangers of working in heat, employers’ responsibilities, and additional resources. These include OSHA’s Occupational Exposure to Heat page and the agency’s publications page, which offers educational articles on heat illness in addition to training materials for employers. The campaign’s website also offers employers a number of videos and graphics that are free to use in publications and social media campaigns.
Since OSHA’s mission statement is “to assure safe and healthful working conditions for working men and women,” it’s no surprise that its enforcement authority generally rests with citing employers.
The Occupational Safety and Health Administration has issued a new fact sheet to assist residential construction employers in meeting safety standards in confined spaces, such as attics, basements, and crawl spaces. The Fact Sheet was developed in consultation with the National Association of Home Builders.
The Occupational Safety and Health Administration’s new electronic portal, the Injury Tracking Application (ITA), where employers can file web-based reports of workplace injuries or illnesses, will be accessible beginning August 1, 2017.
It’s that time of year again…when the federal government tells the regulated community what types of rulemaking initiatives that various agencies are undertaking for the year. Today, the semiannual regulatory agenda was published. This Regulatory Agenda provides a complete list of all regulatory actions that are undr active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
OSHA issues press release regarding Portal for Electronic Recordkeeping Reporting to be available beginning August 1
OSHA issued a press release on July 14, 2017 (see link at https://www.osha.gov/injuryreporting/index.html ) regarding the availability of the portal for electronic recordkeeping reporting.
Executive Summary: In May 2016, the Occupational Safety and Health Administration (OSHA) promulgated the Record Keeping Modernization Rule (the Rule) which required certain employers to submit injury and illness data electronically and specifically prohibited employers from retaliating against employees for reporting an injury or illness. We discussed the Rule in our June 20 and November 30, 2016 Alerts.
Construction firms are developing new safety helmets designed to provide workers with better protection from falls and to curb fatal injuries, according to a report from Bloomberg BNA.
The President’s Tweeting dominated our discussions throughout June, with many people asking why does he Tweet? Was it a crafted strategy? A reasonable response to a biased media? A lack of Judgment? Emotional Outbursts?
New questions are emerging about key provisions the Occupational Safety and Health Administration’s updated rule to prevent falls.
The Advisory Committee on Construction Safety and Health (ACCSH) of the Occupational Safety and Health Administration met on June 20, 2017, to learn about and give recommendations on OSHA’s proposed rule to extend the enforcement date for crane operator certification requirements of the revised Crane Standard, 29 C.F.R. 1926 Subpart CC, issued in 2010.
OSHA has proposed to delay the compliance date of the electronic recordkeeping portion of the new recordkeeping regulation, known as “Improve Tracking of Workplace Injuries and Illnesses,” from July 1, 2017 to December 1, 2017 in order to allow OSHA “the opportunity to further review and consider the rule.” OSHA has also invited the public to comment on the proposed deadline extension. Comments may be submitted electronically at www.regulations.gov, or by mail or fax. The deadline for submitting comments is July 13, 2017.
OSHA Seeks Feedback on Proposal to Revoke Certain Provisions of Beryllium Rule Applicable to the Construction and Shipyard Sectors
The Occupational Safety and Health Administration (OSHA) is reconsidering portions of a final rule setting standards for occupational exposure to beryllium.
No one thought that on June 22, we would still not know the Trump administration's enforcement position on the recordkeeping anti-retaliation requirements, including about automatic post-accident drug testing, the Silica standard, or a host of other issues. Republicans cannot solely blame the Democrats and the “Resistance” movement for the delay in thousands of appointments. The administration seems to be distracted by legal claims and to have little interest in appointing crucial agency leaders.
Rulemaking is underway to amend the Federal Acquisition Regulation (FAR) to remove the Fair Pay and Safe Workplaces Final Rule, the General Services Administration has said in guidance to federal agencies instructing them not to wait for the formal rescission to ensure certain contract clauses are not in new or existing government contracts and solicitations.
In its fiscal year 2018 budget, the Trump Administration recommended $543.3 million for the Occupational Safety and Health Administration, a decrease of about two percent from the fiscal year 2017 $552.8 million funding level.
Employers Do Not Have to Report Injury for Employee Who Does a ‘Daily Stretching Program,’ OSHA Says
Employers do not have to report a worker as having an injury if they instruct the worker to do regular stretching exercises for a “minor discomfort,” the Occupational Safety and Health Administration has concluded in an interpretation letter released on May 24, 2017.
Effective June 1, 2017, the Occupational Safety and Health Review Commission (the federal agency that reviews Occupational Safety and Health Administration safety violation cases) adopted the decision by one of its administrative law judges in a significant case for the construction industry.
Federal OSHA as well as the South Carolina and North Carolina labor departments have designated June 12-18, 2017, as the inaugural Safe + Sound Week. The purpose of this nationwide initiative is to raise awareness and understanding of the value of workplace safety and health programs by encouraging employers to plan activities that include the core elements of a successful safety program.
The compliance date for an Occupational Safety and Health Administration rule requiring construction crane operators be certified by a third-party evaluator and designated as “qualified” will be delayed, the agency announced on May 22, 2017.
President Donald Trump has nominated attorney James Sullivan to the U.S. Occupational Safety and Health Review Commission (OSHRC) to fill the remaining vacancy on the three-member commission.
The Occupational Safety and Health Administration has issued two reports on the safe management of hazards by small businesses and storage facilities that use highly hazardous chemicals in business processes.
An appeal pending before the 11th Circuit Court of Appeals (U.S. v. Mar-Jac Poultry, Inc., No. 16-17745, 11th Cir.) reveals a novel approach the federal Occupational Safety and Health Administration (OSHA) is taking to expand inspections resulting from reported injuries or complaints into wall-to-wall inspections conducted under national, regional, and local emphasis programs targeting specific hazards or industries. OSHA has reportedly started conducting inspections under its Chemical National Emphasis, and OSHA’s position as well as the court’s ultimate ruling could affect the way in which these inspections are initiated.
On May 3, 2017, the final curtain was rung down on the Volks saga: OSHA revoked its so-called “Volks Rule,” which would have amended the recordkeeping regulations in 29 C.F.R. Part 1904 to, it hoped, avoid the holding of the District of Columbia Circuit in AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). That decision held that the Occupational Safety and Health Administration (OSHA) has six months, not five and a half years, after a recordkeeping violation to issue a citation. The removal was published at 82 Fed. Reg. 20548 (May 3, 2017).
On April 25, 2017, the Occupational Safety and Health Administration (OSHA) officially rescinded its 2013 letter of interpretation that many viewed as a clear bow to organized labor by the previous administration and that had created the potential to use an OSHA inspection as a union organizing tool. In its 2013 “Walk-Around Letter of Interpretation,” OSHA changed over four decades of prior accepted practice and declared that at non-union workplaces with no recognized collective bargaining agreement or relationship, even just one employee could select an outside/non-employee union organizer to act as an “authorized employee representative” during an OSHA walk-around inspection at the workplace.
Two Massachusetts contractors were operating as a single employer at a worksite in Massachusetts when at least two employees of a roofing crew fell from a wooden plank in October 2014, an Occupational Safety and Health Review Commission administrative law judge has ruled.
President Donald Trump has nominated Heather L. MacDougall, current Acting Chairman of the Occupational Safety and Health Review Commission, to continue as a Commissioner for a second term.
OSHA has provided notice, in the context of an on-going federal lawsuit, (National Federation of Independent Businesses v. Dougherty, N.D. Tex., No. 16-2568, 4/27/17), that it has rescinded the interpretation letter and removed the guidance from OSHA’s Field Operations Manual (FOM).
In February 2013, OSHA issued an interpretation letter in response to a request from the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, which clarified that employees at a non-union worksite could elect to have a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections.
Section 8(a) of the Occupational Safety and Health (OSH) Act of 1970 authorizes OSHA to inspect workplaces “during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner.” While employers have some level of protection since the mandate specifically states the word “reasonable,” more specific rights exist—and should be exercised—at all stages of an OSHA inspection, including before, during, and after the interview process.
Promoting the message, “Young workers! You have rights!” the Occupational Safety and Health Administration has launched a campaign on workplace safety among youth workers.
President Donald Trump is expected to soon sign a Congressional resolution revoking one of several Occupational Safety and Health Administration rules vulnerable to the Congressional Review Act. In response to Dr. David Michaels' argument against Trump signing the resolution in an article previously published by Bloomberg BNA, Partner Edwin G. Foulke has written the following, suggesting that OSHA move away from an enforcement-driven model to a compliance assistance model to help improve safety in the workplace.
Until day 82 of the Trump Administration, renewed partnerships and “guidance” for employers to improve workplace safety have been the subjects of the Occupational Safety and Health Administration’s announcements. On April 12, 2017, OSHA announced that it has cited Atlantic Drain of Boston for willful, repeat, serious, and other-than-serious violations of workplace safety standards and is proposing $1,475,813 in penalties for those violations.
Fatalities from falls continue to be a leading cause of death in the construction industry, and the Occupational Safety and Health Administration is focusing on the dangers with its “Stand-Down” campaign on fall prevention. The annual campaign, scheduled for May 8 to May 12 this year, is to put the focus on reducing fall-related fatalities in the workplace.
Lawlessness Quashed, Part II: President and Congress Stop OSHA’s Attempt to Avoid the Volks Decision
On Monday, April 3, 2017, President Trump signed a Congressional Review Act resolution, passed by the House on March 1 and by the Senate on March 22, that disapproves of the Occupational Safety and Health Administration’s (OSHA) attempt, by mere amendment of its regulations, to effectively extend the statute of limitations for recordkeeping violations from six months to five and a half years.
Yesterday President Trump signed H.J. Res 83, which finalized the Congressional Review Act (“CRA”) process and nullified OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule.
In a move that President Donald Trump is expected to approve, the Senate has voted to repeal a Labor Department rule that allows the Occupational Safety and Health Administration (OSHA) to sanction employers for “failing to make and maintain injury and illness records” beyond the six-month statute of limitations set out in the Occupational Safety and Health Act.
A new rule that effectively extends from six months to five years the statute of limitations during which the federal government may issue citations for recordkeeping violations of the Occupational Safety and Health Act (OSH Act) is expected to be overturned.
f one listens to various Democrat and labor talking heads, you would think that Congress has rolled back 40 years of worker protections by passing a resolution killing the new OSHA rule, which permitted OSHA to cite employers for record-keeping violations up to five years old, rather than the six-month look back applicable to other violations.
The federal Occupational Safety and Health Administration publishes a list annually of its top 10 most frequently cited alleged violations. The list changes little from year to year, but it is worthwhile for employers to review the list and consider whether extra attention should be paid to specific potential hazards in the workplace.
Late today, the Senate voted 50-48 to adopt H.J. Res 83, nullifying OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule.
The House of Representatives has voted to block a new Occupational Safety and Health Administration recordkeeping rule implemented in the last weeks of the Obama Administration. “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” was published in the Federal Register on December 19, 2016, and became effective on January 18, 2017.
OSHA Will Partner with Labor Organizations, Trade Associations, and Individual Employers to Train and Protect Workers
OSHA’s Strategic Partnership Program (OSPP) for Worker Safety and Health is a federal initiative that seeks to reduce occupational fatalities, injuries, and illnesses as well as improve worker protections by engaging labor organizations, employer groups, individual employers and others in formal, cooperative relationships with OSHA to carry out the purposes of the Occupational Safety and Health Act.
The U.S. Senate has passed, by a single-vote margin, a joint resolution previously passed by the U.S. House that “disapproves” President Barack Obama’s 2014 Executive Order 13673: Fair Pay and Safe Workplaces, often called the “blacklisting” executive order. (For more on Executive Order 13673, see our articles, ‘Blacklisting’ Rules for Government Contractors Proposed by Federal Agencies under Executive Order and DOL and FAR Council Publish Final ‘Fair Pay and Safe Workplaces’ Rules for Government Contractors.)
An appellate court one level below the Supreme Court of the United States, and highly respected in the field of administrative law, recently held that the Occupational Safety and Health Administration’s (OSHA) interpretation of a statute of limitations is wrong, contrary to its “clear” language, “unreasonable,” productive of “absurd” consequences, and that it would be “madness” for OSHA to attempt to avoid the court’s ruling by amending its regulations. So what does OSHA do?
The Occupational and Safety and Health Administration released a preliminary list of the 10 most frequently cited safety and health violations for 2016, compiled from about 32,000 inspections of workplaces by federal OSHA staff.
OSHA Penalties Keep Changing, But the OSH Act Remains the Same: Were OSHA’s Recent Penalty Increases Valid?
Federal OSHA increased its maximum penalties last summer for the first time since 1990. The increase occurred pursuant to a new law requiring federal agencies to adjust penalties to account for inflation. However, the OSH Act, which specifically provides the maximum penalties Fed-OSHA can administer, was not amended. It still prevents Fed-OSHA from issuing penalties higher than the levels set in 1990.
There are new developments related to OSHA’s Electronic Recordkeeping Rule and the Volks Rule. As a reminder, the Electronic Recordkeeping Rule requires certain employers to electronically file their OSHA recordkeeping data with OSHA as well as heightens scrutiny related to both drug testing and safety incentive programs. The Volks Rule essentially reversed the decision held in AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012) (the “Volks Decision”) that limited OSHA’s ability to cite recordkeeping violations to six months.
Republican administrations tend to put more emphasis on helping employers comply with Occupational Safety and Health Administration requirements than on punitive enforcement actions. President Trump is familiar with OSHA because contractors on his construction sites have had run-ins with the agency, so it is even more likely that his Department of Labor will prioritize educational and voluntary programs over high-profile fines and litigation.
Proposed Midnight Rules Relief Act May Put An End To OSHA Recordkeeping Rule - Onerous Workplace Safety Rules Among Many That Could Face The Axe
Earlier this year, the U.S. House of Representatives voted to approve the Midnight Rules Relief Act by a vote of 238-184. This Republican-backed measure would amend the Congressional Review Act and allow Congress to overturn, en masse, any federal regulation enacted during the final year of a president’s term. If approved by the Senate and signed into law, the Act could have broad implications for any regulation passed in 2016, including, among many other workplace law regulations, the recordkeeping rule issued by the Occupational Safety and Health Administration (OSHA) and its related anti-retaliation provisions.
In most instances, an OSHA inspector will arrive at your door unannounced. Among other things, the inspector will present his or her credentials, say why he or she is there, and then ask for your consent to conduct an inspection. The actual inspection and a closing conference will follow, along with the issuance of any citations within six months of any violations.
The 300A log summarizes any work-related injuries and illnesses employees experienced during 2016, and it must be completed and posted even if no injuries or illnesses occurred during the year.
Covered employers must post the Occupational Safety and Health Administration’s (OSHA) Form 300A between February 1 and April 30, 2017. Form 300A is a summary of the total number of job-related injuries and illnesses that occurred during a single year at each workplace. The notice should be posted in a conspicuous location where notices to employees are usually posted. Employers will want to make sure that the posting is not changed, vandalized, or covered by other material.
The Occupational Safety and Health Administration has issued a final rule “to prevent chronic beryllium disease and lung cancer” in workers by limiting their exposure to beryllium and beryllium compounds. Beryllium and beryllium compounds are used in the aerospace, shipyard, electronics, energy, telecommunication, medical, and defense industries.
On January 23, the Mine Safety and Health Administration (MSHA) issued its Final Rule for Examinations of Working Places in Metal and Nonmetal Mines. The final rule amends the existing workplace examinations standard and contains significant and highly burdensome requirements for mine operators. Since its publication in the Federal Register, questions have arisen as to when the Final Rule will become effective due to a recent White House memorandum.
On January 17, 2017, the outgoing administration left one last gift for the Process Safety Management (PSM) community: a new national emphasis inspection program. As the compliance directive notes, “Any violation of the PSM standard is a condition that is likely to cause death or serious physical harm.” Given the Occupational Safety and Health Administration’s (OSHA) recent enforcement requiring flawless piping and instrumentation diagrams, as well as operating procedures, under the guise that documents must be “accurate,” even typographical errors can result in serious violations with penalties reaching $12,675 per violation.
The Occupational Safety and Health Administration has argued in a new “white paper” that employers should include worker safety as part of their “sustainability” calculations.
Effective January 1, 2017, OSHA requires that establishments with 20 to 249 employees in certain high-risk industries, including construction, manufacturing and building material and supplies dealers, submit their injury and illness summary (Form 300A) data to it electronically. Their 2016 Form 300A must be submitted by July 1, 2017 and their 2017 Form 300A must be submitted by July 1, 2018. Establishments with 250 or more employees in industries covered by the record keeping regulation also must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300 and 301) by July 1, 2018.
Dr. David Michaels, the Assistant Secretary for OSHA, announced that today, January 10th, would be his last day with the agency. He will be returning to academia at George Washington University beginning January 17th. And, on this last day, he continued what has been a very aggressive regulatory agenda by announcing that he was accepting a coalition of unions’ petition for the creation of an OSHA standard related to workplace violence in healthcare.
2017 Practical Advice Series, Part II: The Tongue is an Evil Serpent and Email and Tweets are Even Worse
Even a fool who keeps silent is considered wise; when he closes his lips, he is deemed intelligent. Proverbs 17:28
Richard Marx Won’t Be Right Here Waiting To Save You From Workplace Intruders: Lessons To Make Sure Your Workers Are Prepared
Before last week, late 1980s pop singer Richard Marx had not made news headlines since, well, the late 1980s. Over 20 years ago, Marx was very well known for his smooth tenor vocals and flowing mane of hair. He hit his peak when his popular song “Right Here Waiting” – the video for which has been viewed over 110 million times on YouTube – made it to number one on the Billboard Top 100 in 1989. Marx was not, however, widely viewed as someone who could teach lessons about best practices in workplace safety (although he did have a 1992 hit called “Hazard”).
With the exception of Immigration enforcement, I doubt that we will see as vigorous an increase in new employment law requirements and enforcement under the Trump Administration as under President Obama’s tenure. Therefore, I’m returning to the practical day to day subjects which continue to generate employer legal and safety claims or to increase profitability and success … depending on whether one in fact utilizes not-so-common sense.
I enjoy December’s “End of the Year” and “Best of the Year” Lists, especially for books, movies, beer and wine. Of course we also see the annual “Worst of the Year” lists, and as a defense-oriented attorney, I’m always fascinated by the annual “Judicial Hellholes” List. This fine document is prepared by the American Tort Reform Association (ATRA), and while the group is cheerfully partisan, one can’t dispute their evaluation of the most litigious and some would say, most outrageous venues in which to be sued.
On October 31, 2016, a $1 million dollar judgment against BNSF Railway Co. evaporated when the U.S. Court of Appeals for the Seventh Circuit set groundbreaking precedent under the Federal Railroad Safety Act (FRSA) and vindicated BNSF. The jury had awarded Michael Koziara, the plaintiff in the case, a total of $425,724.64, which included $125,000 in punitive damages. In addition, the court had awarded approximately $565,000 in attorneys’ fees, costs, and pre- and post-judgment interest. The Seventh Circuit reversed the judgment of the U.S. District Court in the Western District of Wisconsin with instructions to dismiss the case based on errors in jury instructions. Koziara v. BNSF Railway Co., No. 16-1577 (October 31, 2016). The Court of Appeals denied rehearing en banc on December 1, 2016.
In the face of mounting evidence of the widespread extent of workplace violence in the healthcare and social assistance sector, OSHA announced in the Federal Register on December 7th, 2016, that it is assessing the need for “a standard aimed at preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients or clients.”
OSHA, Drugs, and Rock ‘n’ Roll: A Musical Soundtrack to OSHA’s New Drug Testing and Anti-Retaliation Rule
OSHA’s new drug testing and anti-retaliation rule, which alters the circumstances when drug testing can be conducted and reemphasizes the protections for employees to report injury and illnesses without fear of retaliation, is now in effect. The final rule, which has likely led to more calls to our firm than any other change we’ve seen this year, contains three key provisions of which employers should be aware.
On November 17, 2016, OSHA issued a final rule revising and updating its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The final rule includes revised and new provisions addressing fixed ladders, rope descent systems, and fall protection systems. The rule also establishes requirements on the design, performance and use of personal fall protection systems in general industry. In addition, employers must now train employees on identifying and minimizing fall hazards, using fall protection systems and maintaining, inspecting and storing fall protection equipment.
Executive Summary: A federal judge on November 28 refused to block implementation of the anti-retaliation provisions of OSHA’s recordkeeping and reporting rule scheduled to take effect December 1, 2016. The business groups challenging the rule (collectively TEXO) argued that it would unlawfully prohibit or limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs. The court held that the rule’s challengers failed to show that irreparable harm would result or that the public interest would be disserved if the court did not grant an injunction. See TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV 1998-L (N.D. Tex. Nov. 28, 2016).
The next version of Occupational Safety and Health Administration’s annual voluntary guidance cataloging measures for improving safety and health in the workplace may include insights from the public. For the first time ever, OSHA wants assistance from the public to identify the “leading indicators.”
Court Declines to Enjoin OSHA Drug Testing and Safety Incentives Under the Electronic Recordkeeping Reporting Rule
On a very limited legal basis, a federal district court has declined to enjoin the U.S. Occupational Safety and Health Administration from enforcing portions of its new recordkeeping rule related to potentially retaliatory post-accident drug testing and safety incentive programs. Published on May 12, 2016, the OSHA rule expressly prohibits retaliation for reporting a work-related injury or illness, requires various employers to submit injury and illness data electronically, and changes employer obligations for ensuring employees report all work-related injuries and illnesses.1
On November 28, 2016, a federal district judge rejected several industry groups’ attempt to halt certain aspects of the Occupational Safety and Health Administration’s (OSHA) Improve Tracking of Workplace Injuries and Illnesses final rule. In particular, the groups were targeting the new “anti-retaliation” provisions under 29 C.F.R. Sections 1904.35 and 1904.36, which would effectively prohibit employers from utilizing certain safety incentive programs and mandatory post-accident drug testing policies.
The election of Donald Trump surprised some Americans. In the days since his victory, our firm’s lawyers have fielded numerous questions from employers regarding what changes to workplace law they can expect under the Trump Administration.
OSHA first released its “Guidelines for Safety and Health Programs” 30 years ago. Since then, the workplace has changed so much that it can, in some ways, appear unrecognizable from days gone by. OSHA has therefore recently updated its guidelines to address both these changes and the accompanying safety and health issues that are now part of the modern workplace.
In its first comprehensive changes in 30 years, the Occupational Safety and Health Administration has updated its Guidelines for Safety and Health Programs to reflect “changes in the economy, workplaces, and evolving safety and health issues.”
On October 19, 2016, OSHA published a memo advising the new provisions of Section 1904.35, which require employers to set up reasonable procedures for reporting workplace injuries/illnesses and prohibit employers from retaliating against employees who reported work place injuries/illnesses. The memo specifically addressed discipline, drug and alcohol testing and incentive programs and how they may be interpreted by OSHA under this new law.
OSHA Recommended Transgender Employees Use Restrooms Consistent With Gender Identity – Are You, Your Employees, and Your Customers Ready to Accept This?
More and more, the issue of transgender rights is coming into the national spotlight. Employers are being presented with questions about how to lawfully accommodate transgender employees in the workplace. To date, these questions have not had simple legal answers nor are the answers readily accepted by all.
While the bulk of our attention has been focused on the troubling Presidential race, employers would be well advised to more closely watch the US Senate races. As I type, the current Senate of 41 Republicans and 46 Democrats could shift to a Democrat body after the election. Nevada, Missouri, Indiana, Pennsylvania, New Hampshire and North Carolina Senate races are classified by the Wall Street Journal as “too close to call.” (Graphic below from WSJ, only better at WSJ!
Dr. Michaels, an epidemiologist and professor at George Washington University School of Public Health, was appointed as the 12th Assistant Secretary of Labor for Occupational Safety and Health in December, 2009. Having served seven years with OSHA, Dr. Michaels is the longest serving Assistant Secretary.
The Occupational Safety and Health Administration (OSHA) recently released a memorandum explaining “in more detail” two provisions added to the recordkeeping regulation: Section 1904.35(b)(1)(i) requiring “employers to have a reasonable procedure for employees to report work-related injuries and illnesses”; and Section 1904.35(b)(1)(iv) prohibiting retaliation for reporting work-related injuries and illnesses.
OSHA recently released its preliminary annual list of the top ten safety and health violations cited for fiscal year 2016. While not anticipated to change much, a more final list will be completed closer to the end of 2016.
On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In conjunction with the memorandum, OSHA also provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios on its website.
The Occupational Safety and Health Administration’s (OSHA) Lockout Standard (29 C.F.R. 1910.147) applies today only to “unexpected” startups of machinery. For example, the standard does not apply if alarms give employees such clearly audible and timely warning that any startup would be expected (consider the warnings given at airport baggage carousels). The word “unexpected” also means that the standard would not apply if, for example, a machine were so small and its one switch were so located that any employee servicing it would know of any restart attempt.
The Occupation Safety and Health Administration (OSHA) again delayed enforcement of the anti-retaliation provisions included in the revised recordkeeping regulation, 29 CFR Part 1904, until December 1, 2016. OSHA delayed enforcement at the request of Northern District of Texas Judge Sam Lindsay. Judge Lindsay is considering the complaint and motion for preliminary injunction filed by several industry groups challenging the anti-retaliation provisions to the extent that OSHA seeks to limit routine post-accident drug testing and incident-based safety incentive and recognition plans.
Last week, OSHA’s proposed rule for Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) in General Industry (Subpart D and Subpart I) cleared the White House Office of Management and Budget (OMB), signaling the forthcoming final publication by OSHA.
"MAKE OSHA GREAT AGAIN!" What the Occupational Safety & Health Administration Might Look Like Under a President Trump
The general election is less than five weeks away. On November 8, 2016 - in conclusion of perhaps the most entertaining election cycle in U.S. history - American voters will finally determine if Hillary Clinton or Donald Trump will succeed Barack Obama as our nation’s President.
The Occupational Safety and Health Administration failed to go through the proper rulemaking process before mandating retailers to implement new stricter storage standards for anhydrous ammonia fertilizer, the U.S. Court of Appeals for the D.C. Circuit has ruled. Agricultural Retailers Association and the Fertilizer Institute v. OSHA, No. 15-1326 (D.C. Cir. Sept. 23, 2016).
In July 2015, OSHA issued a Directive on the revised Hazard Communication Standard (“HCS”), Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079. In that Directive OSHA provided guidance on the interplay between labeling under the HCS and other federal agencies, specifically the Department of Transportation (“DOT”).
The Occupational Safety and Health Administration overstepped its authority in expanding union representation at “walk-arounds” in non-union workplaces, the National Federation of Independent Business has alleged in a lawsuit against the agency filed in Texas. Nat’l Fed’n of Indep. Bus. v. Dougherty, No. 3:16-cv-02568 (N.D. Tex. Sept. 8, 2016).
The Occupational Safety and Health Administration is considering updating its safety standards covering falls in shipbuilding, ship repair, shipbreaking, and other shipyard-related employment and has issued a Request for Information. Comments and materials must be submitted by December 7, 2016.
Dr. David Michaels, Assistant Secretary of Labor for the Occupational Safety and Health Administration, issued a new report, discussing the results of the first year of the severe injury reporting requirements. The report concludes that the severe injury reporting program has been a big success in improving safety and health in workplaces across the United States, and in helping OSHA focus its resources where most needed. OSHA recognizes, however, that more still needs to be done to reduce the number of in-patient hospitalizations and amputations in today’s work places and hold employer’s accountable for such severe injuries.
OSHA Joins the SEC in Attacking Confidentiality and Other Provisions in Private Settlement Agreements
On September 15, 2016, the federal Occupational Safety and Health Administration (OSHA) released new policy guidelines for its review of private settlement agreements presented to the agency for approval in whistleblowing actions.1 OSHA issued these guidelines based on its concern that certain confidentiality and other provisions in settlement agreements may unlawfully restrict or discourage employee activity that the government would like to protect and promote.
Using a crane to move headstones and small monuments is “generally” not defined as construction, but the crane operator is still responsible for stringent worker-safety rules regarding crane operations, the Occupational Safety and Health Administration has advised in response to a question from an Arkansas granite and marble cemetery monument delivery company.
Earlier this year, the Occupational Safety and Health Administration (OSHA) published its long-awaited final rule (https://www.gpo.gov/fdsys/pkg/FR-2016-03-25/pdf/2016-04800.pdf) setting new workplace permissible exposure limits (PELs) for respirable crystalline silica. The new rule includes one standard for the construction industry and a separate standard for general industry and maritime employment. While the rule took effect on June 23, 2016, employers have some time to adjust. Compliance dates for different requirements are staggered, with a June 23, 2017 deadline for employers in the construction industry, and a June 23, 2018 deadline for those in general industry and maritime operations.
On September 8, the National Federation of Independent Business (NFIB) filed a federal court complaint in Dallas, seeking to strike down what has become known as the U.S. Occupational Safety and Health Administration’s (OSHA) “union walk around rule.” The lawsuit seeks a declaratory judgment that OSHA acted “arbitrarily and capriciously” in issuing the rule and did not afford the public an opportunity to comment on the rule before its promulgation. The NFIB also seeks to enjoin OSHA from enforcing the rule.
How Would Coach Nick Saban Handle an OSHA Inspection? Lessons for Employers from the Crimson Tide’s Championship Football Coach
September has arrived. That can only mean one thing: it’s time for college football!
State workplace safety agencies raised objections to adopting federal Occupational Safety and Health Administration’s penalty increases in letters to the Department of Labor on OSHA’s interim final rule, Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustment. State agencies with OSHA-approved job safety and health programs maintain that OSHA exceeded its authority in imposing the new fine structure on State Plans.
As many employers know, OSHA has attempted to gain unprecedented power in the inspection process. Indeed, as this article is written, battles are being fought in federal court relative to OSHA’s authority and power in the inspection and rulemaking process.
Most state workplace safety programs did not meet performance goals, an annual report by the federal Occupational Safety and Health Administration studying 21 state programs in fiscal year 2015 has found. This is largely because of high staff turnover and insufficient federal funding in many states, OSHA said.
Noise Complaints Don’t Fall on Deaf Ears: OSHA Sets Out to End Workplace Noise Exposure and Related Hearing Loss
Recently, OSHA, the Mine Safety and Health Administration and the National Institute for Occupational Safety and Health teamed up to compel inventors to develop a solution to workplace noise exposure and corollary hearing loss. The trifecta endeavors to ameliorate the risk of hearing loss that 22 million workers face every year from workplace noise hazards.
The Occupational Safety and Health Administration has issued “interim guidance” to provide employers and workers information and advice on preventing occupational exposure to the mosquito-borne Zika virus.
Noise Complaints Don’t Fall on Deaf Ears: OSHA Sets Out to End Workplace Noise Exposure and Related Hearing Loss
Recently, OSHA, the Mine Safety and Health Administration and the National Institute for Occupational Safety and Health teamed up to compel inventors to develop a solution to workplace noise exposure and corollary hearing loss. The trifecta endeavors to ameliorate the risk of hearing loss that 22 million workers face every year from workplace noise hazards.
Concerns employers may use temporary workers as a means to fill hazardous jobs and skirt compliance with OSHA regulations, has led to OSHA holding staffing agencies jointly responsible for safety violations when temporary workers are exposed to unsafe conditions. While the extent of staffing agency responsibilities are fact-specific—based upon the applicable regulations for the particular job and activity—what OSHA has made clear is that staffing agencies and employers are jointly responsible for ensuring OSHA compliance and that temporary workers have a safe place to work.
That’s Tainted! What Employers Should Know About OSHA’s Enforcement of the Food Safety Modernization Act
Lost in all the landscape-altering changes made by OSHA during the last 18 months was its adoption of enforcement procedures for handling retaliation claims under the FDA’s Food Safety Modernization Act (“FSMA”). Employers across many industries should take notice of the far-reaching provisions of the FSMA. It not only applies to food processing employers, but any entity that is involved with the transportation or handling of food products, including trucking companies, distribution centers, warehouses, and cold storage.
The Occupational Health and Safety Administration’s new campaign — “Water. Rest. Shade.” — alerts employers and workers to the hazards of working in high summer temperatures and highlights OSHA’s educational and training resources, including a free app, to help lower the risk of heat-related illnesses in the workplace.
In an April 2016 Interpretation Letter, which was recently made publically available, OSHA responded to a question about medical treatment beyond first aid for recordkeeping purposes. The incident in question involved an employee who experienced wrist pain after working at a computer. Before being seen at the occupational health clinic, the employee bought and used a rigid wrist brace. The doctor said that the brace was not necessary but recommended that the employee continue to wear it if it was relieving the pain. The requester wanted to know whether this constituted medical treatment.
Earlier this year, the Occupational Safety and Health Administration (OSHA) signaled an intention to take employers to task for maintaining policies that required employees to immediately report workplace injuries and accidents or face discipline. OSHA considers such policies to be retaliatory and a violation of section 11(c) of the Occupational Safety and Health (OSH) Act. In addition, OSHA will likely also consider such policies to be a violation of the new anti-retaliation provisions under its recently published recordkeeping rule.
The Occupational Safety and Health Administration (OSHA) announced on July 13, 2016, that the anti-retaliation provisions included in the revised recordkeeping regulation, 29 CFR Part 1904, will not be enforced until November 1, 2016. The provisions were originally scheduled to go into effect on August 10, 2016.
OSHA has issued a new Fact Sheet for Combustible Dust Explosion Hazards. See link: https://www.osha.gov/Publications/OSHA3878.pdf
The Occupational Safety and Health Administration (OSHA) is the government agency tasked with setting and enforcing workplace safety standards. As part of the Department of Labor, OSHA has recently seen a great deal of regulatory activity. WPI Co-Chair Ilyse Schuman interviews Ben Huggett, a shareholder at Littler’ Philadelphia office, and discusses the developments at OSHA and how they impact almost all areas of employment.
The two-year bipartisan budget President Obama signed on November 2, 2015, required OSHA to raise its citation penalties for the first time in 25 years. Since 1990, OSHA has been one of only three federal agencies that were specifically exempted from a law that required federal agencies to raise their fines to keep pace with inflation. A section of the budget bill – entitled the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 – eliminates this exemption for OSHA. This provision will be implemented through an interim final rule scheduled for publication in the July 1, 2016 edition of the Federal Register. OSHA will assess the new penalty amounts starting August 1, 2016.
On June 30, 2016, the U.S. Department of Labor (DOL) announced its interim final rule on Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments. The rule was formally published in the Federal Register on July 1.
A New York man and two construction companies he owns have been indicted on manslaughter and other charges in the death of an employee who plunged six stories to his death after allegedly being directed to perform work without fall protection.
The Occupational Safety and Health Administration has revved up rulemaking and workplace inspection initiatives, changing the enforcement landscape more during the past two years than we saw in the preceding 30. Employers, general counsels and human resource departments should steel themselves for new complexity in dealing with OSHA and Occupational Safety and Health Act compliance. Those who do not comply may not only face significant frustration, but also considerable economic liability.
It has been close to 100° in many southern states and even worse in the West. The Union of Concerned Scientists has warned of a “dangerous heat wave and steps to take. Perhaps I should not be surprised that we have heard of an unusual number of employee deaths where heat was probably not a factor, but the circumstances required determining whether workplace heat contributed to the event. Similarly, was an employee’s illness after work related to the heat and was the hospitalization for treatment or for “observation.” We have also seen a large number of OSHA inspections examining heat outside on construction sites or in manufacturers and foundries. Regardless of these legal issues, one fact is clear … we have to purposefully protect employees during this season.
OSHA officials have been busy as the weather heats up and spring turned to summer. On May 20, 2016, OSHA cited BC Stucco and Stone, a construction company in Darby, Pennsylvania, for one serious violation and three willful violations. The investigation dated back to November 25, 2015 when an OSHA compliance officer observed an employee working eighteen feet above ground on a scaffold without fall protection. The proposed penalties are $93,000. BS Stucco had also been previously cited on May 2, 2016 at their Philadelphia location.
Employers Should Evaluate Safety Incentive Programs and Drug Testing Policies in Light of New OSHA Rule
Executive Summary: The Occupational Safety and Health Administration (OSHA) recently published a final rule revising its recordkeeping and reporting regulation to specifically state that employer policies for reporting workplace injuries and illnesses must be reasonable and to specifically prohibit retaliation against employees who report a workplace injury or illness. Under the rule, procedures that deter or discourage employee reporting are not reasonable. The new rule has created concern among employers regarding the legality of disciplinary programs, mandatory post-incident drug testing, and employee safety incentive plans.
With the arrival of summer, the Occupational Safety and Health Administration has launched initiatives to alert employers and workers to heat and lightning hazards and the steps to take to prevent injury or illness from them.
The Occupational Safety and Health Administration has identified seven proposals the agency hopes to release as final rules before the end of the year, while the Mine Safety and Health Administration, its sister agency within the Department of Labor, plans to issue two final rules in 2016.
It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. On May 18, 2016 the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
The Occupational Safety and Health Administration (OSHA) issued its final rule regarding injury and illness data collection and recordkeeping. OSHA's stated intent is to "better inform workers, employers, the public and OSHA about workplace hazards." Although employers already must keep a record of injuries and illnesses, this information is not available publicly. OSHA would access the information as part of an inspection or under a written request. Under the new rule, employers in high-hazard industries will send OSHA injury and illness data for posting on the agency's website. OSHA will remove personally identifiable information associated with the data before it is publicly accessible.
The OSHA Technical Manual (OTM) provides information about workplace hazards and controls to OSHA’s Compliance Safety and Health Officers. The OTM is based upon currently available research, publications, OSHA Standards, and consensus standards. OSHA is adding a new chapter on fall protection to its OTM. Chapter 4, entitled “Fall Protection in Construction,” provides technical information about fall hazards and protection methods. The information is intended to help prepare OSHA compliance officers to conduct inspections and investigations.
The Occupational Safety and Health Administration has released “Improve Tracking of Workplace Injuries and Illnesses,” its long-anticipated final rule revising its Recording and Reporting Occupational Injuries and Illnesses regulation.
What OSHA’s Electronic Recordkeeping Rule Means For Workplace Post-Accident Drug and Alcohol Testing
Today, OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register.
Federal government agencies have released interim guidance to provide employers and workers information and advice on preventing occupational exposure to the Zika virus.
In the first revision in 30 years of its criteria document on workers’ exposure to heat and hot environments, the National Institute for Occupational Safety and Health of the Centers for Disease Control and Prevention removed ceiling limit recommendations for acclimatized and un-acclimated workers, but has left untouched its recommended exposure and alert limits.
On April 18, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it has issued procedural rules for enforcement of whistleblower complaints alleging violations of the Federal Food, Drug, and Cosmetic Act (FDCA). The new final rule, set out in Section 402 of the Food Safety Modernization Act, protects employees who have disclosed information of a possible violation of the FDCA.
The Occupational Safety and Health Administration finds that its new severe injury reporting program is a success. It believes a large number of severe injuries still are not being reported by employers. The agency has warned that tough consequences face employers who choose to ignore the reporting requirements.
On March 4, 2016, the Occupational Safety and Health Administration (OSHA) issued new procedures for enforcing revised injury and illness reporting requirements in 29 C.F.R. § 1904.39. Many of the 2014 interim procedures remain unchanged, but now employers will face a minimum penalty of $5,000 for failing to report. The new procedures also include a so-called “safe harbor” provision that OSHA claims will prevent the agency from using root cause reports that employers submit as the basis for citations. As discussed further below, the protection in the “safe harbor” is a bit illusory.
The Occupational Safety and Health Administration (OSHA) has released its final rule on occupational exposure to respirable crystalline silica.
The Occupational Safety and Health Administration has launched emphasis programs in three Midwestern states in an effort to reduce injuries and illnesses that government data show have affected 7.5 percent of employees in the meat processing industry there.
Rushing to put final rules in place before the current Administration’s term ends, on March 17, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule for implementing the whistleblower protections under Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (CFPA). The day before, OSHA published its interim final rule and request for comments on its proposed procedures for handling whistleblower retaliation complaints under Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), applicable to automotive industry manufacturers, suppliers and dealers. Both sets of rules establish procedures and timeframes for OSHA’s handling of whistleblower retaliation complaints under each statute, as well as identify the available legal and equitable remedies for whistleblowers who prevail.
On March 24, 2016, the Occupational Safety and Health Administration (OSHA) announced its final rule on occupational exposure to respirable crystalline silica. The rule was published in the Federal Register on March 25, 2016.
Stepped-Up DOJ Enforcement Signals Intent to Increase Criminal Prosecution of Workplace Safety Violations
Companies who have in the past considered OSHA penalties as a mere cost of doing business and not a significant deterrent should rethink their position and revamp their compliance programs based on recent steps taken by the Department of Justice (DOJ) which heighten the risk of non-compliance.
As OSHA gears up for its yearly National Safety Stand Down to prevent falls in the construction industry, one can expect there to be an increase in available fall related information and resources. With each year’s initiative, OSHA provides substantial guidance for both employers and employees regarding safe practices and fall prevention. While one of the best places to find information on fall safety and OSHA compliance is through OSHA itself, there are many other resources that are just as accessible and may be of some utility.
Although a defective piece of mobile equipment, which was restored to service, improperly moved despite the inactivation of the equipment, it did so too slowly to make an injury reasonably likely, an administrative law judge (ALJ) has ruled.
Training and education were highlighted as key concerns of participants at a February 11 workshop called by the Occupational Safety and Health Administration and the Federal Communications Commission to discuss proposed guidance for best safety practices for mobile phone and broadcast tower workers and to provide an update on certification and apprentice programs for those employees.
Traffic accidents are the number one killer of employees in the United States. There is a vehicle crash every 2.5 seconds, a vehicle-related injury every 19 seconds, and a vehicle-related fatality every 11 minutes. According to the most recent data available, more than 32,000 people died and an additional 2.3 million people were injured in traffic accidents in 2014 alone.
What to Expect from OSHA in 2016: Michaels Discusses Hazard Alerts, Silica Rule, Reporting, and Other Priorities
On February 11, 2016, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health and the head of the Occupational Safety & Health Administration (OSHA), spoke to 170 members of the oil and gas well servicing industry at the Association of Energy Service Companies’ (AESC) Winter Meeting in Horseshoe Bay, Texas, about what the public can expect to see from OSHA in 2016.
Manufacturing industries with elevated injury and illness rates in Kansas, Missouri, and Nebraska face an increased probability of getting a comprehensive safety and health inspection as a result of an initiative launched by the Occupational Safety and Health Administration on January 25.
A judge has thrown out a citation against a Tennessee rock producer for inadequate illumination because the mine safety inspector wrote the alleged offense during a daylight inspection and never established what miners were able to see in the dark. Sec’y of Labor, MSHA v. Buzzi Unicem USA, FMSHRC No. SE 2015-206-M (Jan. 8, 2016).
The Metal/Non-Metal (M/NM) sector of the U.S. mining industry achieved two first-ever milestones last year, not only by working without a fatality for 133 consecutive days — about 4.5 months — but also by doing so during October, a month which had never before been fatality-free in the M/NM sector.
The Industrial Truck Association (ITA) has renewed an alliance with the Occupational Safety and Health Administration that is designed to reduce workplace incidents, such as tip-overs and struck by hazards, associated with powered industrial trucks.
The Mine Safety and Health Administration may continue phasing-in its new coal dust rules, a three-judge panel of the Eleventh Circuit Court of Appeals has decided, relying on what it called a “holistic interpretation” of the Mine Act to uphold MSHA’s new rules. National Mining Association, et al. v. Sec’y of Labor, et al., No. 14-11942 (Jan. 25, 2016). The rule expands sampling requirements, changes sampling methods and tools, lowers permissible exposure limits, and requires immediate corrective actions by mine operators.
A divided National Labor Relations Board (NLRB) has ruled that a memorandum of understanding (MOU) between NLRB and the Occupational Safety and Health Administration over OSHA-related issues does not require NLRB’s General Counsel to consult with OSHA before issuing investigative subpoenas.
Finding evidence presented by a mine inspector to be “too vague and conclusory,” an Administrative Law Judge (ALJ) has vacated two citations against a Tennessee stone producer over allegedly excessive slack in the steering mechanisms on two haul trucks.
The Occupational Safety and Health Administration may have thrown in the towel on issuing a general industry regulation for combustible dust before the end of the Obama Administration in January 2017.
Like death and taxes, the Occupational Safety and Health Administration (OSHA) can always be counted on to ratchet up enforcement efforts against employers each year. 2016 appears to be no different. The year begins with the agency continuing to sharpen its emphasis on inspecting and citing employers who violate its recordkeeping standard. This takes on greater importance because the reporting requirement changes that went into effect last year had a significant impact on the businesses that OSHA will be inspecting.
As is often the case, the year’s end signals an opportunity to look back and reflect on significant developments that have occurred, to turn one’s attention forward – and to think ahead. This annual focus can relate to almost anything, including politics, entertainment, your health, your family, and yes – even the Occupational Safety and Health Administration (OSHA).
On January 1, 2015, the new injury and illness reporting requirements went into effect requiring employers to report to OSHA fatalities as a result of a work-related incident within 8 hours, and in-patient hospitalizations, amputations, or loss of an eye as a result of a work-related incident within 24 hours.
OSHA and FAA Agree to Increased Cooperation and Information Sharing to Protect Aviation Whistleblowers
The Occupational Safety and Health Administration and the Federal Aviation Administration have executed a memorandum of understanding (MOU) regarding the enforcement of the whistleblower provisions in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21) (49 U.S.C. § 42121), a law enacted in 2000 to improve air safety. According to the December 1, 2015, MOU, OSHA and the FAA concluded that administrative efficiencies and sound enforcement policies will be maximized by the agencies cooperating and exchanging information in a timely manner.
In a new enforcement effort involving the Occupational Safety and Health Administration and the Mine Safety and Health Administration, the federal government is launching an initiative aimed at putting more bite into penalties for alleged worker safety violations.
The Occupational Safety and Health Administration has sent its comprehensive rule governing worker exposure to respirable crystalline silica to the White House’s Office of Management and Budget for final review.
The United State Department of Justice and the United States Department of Labor have entered into a Memorandum of Understanding to provide for the coordination of matters pertaining to worker safety that could lead to criminal prosecution by the Department of Justice. Under the Memorandum, the U.S. Attorneys’ Offices will work with OSHA, Mine Safety (MSHA), and Wage and Hour Division to investigate and prosecute worker endangerment violations.
On December 17, 2015, the U.S. Departments of Justice (DOJ) and Labor (DOL) announced a new memorandum of understanding (MOU) to increase the frequency and effectiveness of criminal prosecutions of so-called worker endangerment statutes. The MOU transfers the prosecution of violations of some statutes – the Occupational Safety and Health (OSH) Act, the Mine Safety and Health (MSH) Act, and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) – from the DOJ Criminal Division’s Fraud Section to the DOJ’s Environment and Natural Resource Division’s Environmental Crimes Section. The memorandum says that the DOJ has trained “hundreds” of inspectors to recognize and document prosecutable offenses, and that it would be providing a designated Criminal Coordinator from the DOL to work with local U.S. district attorneys on prosecuting these crimes.
In 2010, the Occupational Safety and Health Administration (OSHA) let employers know there was a new sheriff in town. Now there will be a new police force as well. On December 17, 2015, the U.S. Department of Justice (DOJ) announced the expansion of the Worker Endangerment Initiative. In its announcement, the DOJ stated this was a new plan for prosecuting Occupational Safety and Health (OSH) Act and Federal Mine Safety and Health Act (Mine Act) crimes.
The last year of President Obama’s administration is fast approaching and 2016 looks to be a busy time for the Occupational Safety and Health Administration (OSHA), as it attempts to finalize significant rulemakings and guidance documents.
On December 9, 2015 OSHA held a public meeting at the Department of Labor in Washington, D.C. to discuss its revised Safety and Health Program Management Guidelines, which are voluntary guidelines for employers. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, led the meeting and sought input on the guidelines, which are currently in draft form. In addition to seeking general input and guidance from stakeholders, Dr. Michaels explained that OSHA was seeking answers to five key questions as well:
On December 9, 2015 OSHA held a public meeting at the Department of Labor in Washington, D.C. to discuss its revised Safety and Health Program Management Guidelines, which are voluntary guidelines for employers. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, led the meeting and sought input on the guidelines, which are currently in draft form.
As expected, the Occupational Safety and Health Administration is pleased that agency fines will be going up as much as 82 percent next year, even though the authorization from Congress in a budget bill was unexpected.
A regulation issued by the Federal Motor Carrier Safety Administration (FMCSA) will give commercial truck and bus drivers additional protection from being coerced into violating federal motor carrier safety regulations. The rule, which was proposed in May 2014, goes into effect on January 29, 2016.
The first six months of the new year will be busy ones for the Occupational Safety and Health Administration if rules included in the agency’s semi-annual regulatory agenda are released as scheduled.
The good news is that the Mine Safety and Health Administration has set forth a sparse regulatory agenda over the next six months, but the bad news is that agenda is topped by the agency’s intent to issue an unpopular final rule reforming its civil penalty procedures.
On December 1, 2015, the Occupational Safety and Health Administration (OSHA) launched a new web page in an effort to assist healthcare providers in curtailing violence in their workplaces. The page offers links to excellent resources on establishing a prevention program; workplace analysis and hazard identification; hazard prevention and control; safety and health training; and recordkeeping and program evaluation. The web page also includes information about legal requirements in various states and other valuable information for healthcare providers.
Issues with the the Mine Safety and Health Administration’s auditing of agency occupational injury and illness reporting mandates were exposed in a case in which an Administrative Law Judge threw out six citations because he said they failed to satisfy requirements of the regulation.
The Occupational Safety and Health Administration is asking for stakeholder input on revised safety and health management guidelines that employers may adopt voluntarily. The draft guidelines (https://www.osha.gov/shpmguidelines/SHPM_guidelines.pdf) update the agency’s 1989 safety and health program management guidelines.
The federal Occupational Safety and Health Administration has launched a webpage to provide employers and workers with strategies and resources for preventing workplace violence in healthcare settings.
OSHA launched a new Preventing Workplace Violence in Healthcare webpage this week. It contains several new tools and resources to help healthcare facilities combat workplace violence, including:
This podcast discusses OSHA’s updated guidelines on safety and health management programs, which have been put out for public comment
The federal government has taken steps to create additional safety compliance obligations for hospitality employers that will make it more likely you’ll be on the receiving end of an inspection in the near future. So what should you be worrying about?
A ruling that went against an Alabama underground coal operator has revealed sharp differences among members of the Federal Mine Safety and Health Review Commission over the interpretation of a safety standard dealing with imminent danger.
The Holiday Season is definitely upon us. Thanksgiving is only hours away. And while many of us make our last minute preparations for that big turkey dinner and the inevitable tryptophan-induced nap in front of the television, retailers are preparing themselves for one of the biggest shopping days of the year. Black Friday, almost a national holiday unto itself, draws some of the biggest shopping crowds of the year. Many retailers open their doors as early as Thanksgiving night and can still count on a maximum capacity crowd. With great sales, however, comes great responsibility, and OSHA wants to remind retailers about its duty to keep workers safe.
OSHA’s Latest Regulatory Agenda: Silica, Tree Care, Powered Industrial Trucks, Lockout/Tagout . . . and Much More
The U. S. Department of Labor (DOL) recently released its Fall 2015 Regulatory Agenda, its semi-annual status report of all regulatory actions underway or being contemplated by the DOL’s agencies. Included in the agenda were the Occupational Safety and Health Administration’s (OSHA) announcement that many of its standards nearing final rule status, such as Silica and Walking Working Surfaces, will have delayed deadlines. A few new surprises were included in the agenda, such as OSHA’s announcement to begin rulemaking on new standards for Tree Care, Powered Industrial Trucks, and Revocation of Obsolete Permissible Exposure Limits (PELs).
On November 20, 2015 the fall semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
Citing a recent occupational death and serious accident, the Mine Safety and Health Administration said it will be enforcing safety standards over the next several months in the Metal/Non-Metal (M/NM) sector of mining to try to prevent accidents associated with confined spaces.
The preliminary schedule is out! Listen to this brief podcast to find out the estimated dates for OSHA’s final rules on crystalline silica and electronic recordkeeping.
In August, OSHA issued a revised version of its 2006 Directive on the Agency’s National Emphasis Program on Amputations that includes an updated list of 80 industries, primarily in manufacturing, that are targeted for inspection based on the high number of amputations that have occurred in those industries since 2006.
OSHA is being criticized for a recent interpretation letter clarifying who is responsible for recording illnesses and injuries in what the agency considers a “joint employer relationship” where supervision is shared between a host employer and a staffing agency. In deciding whether the host employer or the staffing agency is responsible for recording injuries and illnesses, the determining factors, according to OSHA’s requirements, are: (1) who supervises the employees on a day-to-day basis, and (2) what constitutes day-to-day supervision.
The quasi-judicial body overseeing enforcement actions by the Occupational Safety and Health Administration has handed OSHA another challenge to the agency’s nascent use of guidance documents as the basis for issuing citations, rather than relying on legally promulgated standards.
Get Ready for Monday-Morning Quarterbacking: OSHA Releases Compliance Guidance and Will Soon Finalize Electronic Recordkeeping Proposal
The Occupational Safety and Health Administration (OSHA) recently sent its proposal to amend the recordkeeping regulation, 29 CFR Part 1904, to the Office of Information and Regulatory Affairs (OIRA)—a necessary step in the process of finalizing the proposal. OSHA proposes requiring some employers to submit injury and illness data electronically. The proposal’s requirements depend upon the size of the establishment and break out as follows:
Recognizing that “an ounce of prevention is worth a pound of cure”, OSHA introduced last week its draft document, “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation” (available here). In the draft document, OSHA identifies these five key steps to creating an effective anti-retaliation program:
Healthcare employers be advised: OSHA is standing behind its updated workplace violence prevention guidance.
The Bureau of Labor Statistics (BLS) reports that in 2013, over 23,000 significant workplace injuries occurred due to assaults on the job– and that over 70 percent of these assaults were in healthcare and social service settings.
While big penalties levied by the federal Occupational Safety and Health Administration dominate the headlines, monetary fines imposed by health and safety agencies in states backed by OSHA can be significant, too.
Employers woke up to a surprise on November 3. That’s when we learned that the Federal Budget Agreement, which was quickly worked out behind closed doors and signed the day before, includes surprise provisions authorizing the Occupational Safety and Health Administration (OSHA) to increase penalties for the first time since 1990. To the surprise of almost all observers, the amount of the increase could be as much as 82%.
Last month, OSHA issued the latest update to its Field Operations Manual (FOM), the most recent update since a prior update in 2009. Significantly, OSHA’s FOM serves as a reference document for OSHA field personnel, providing enforcement policies and procedures relating to OSHA investigations and enforcement proceedings. This nearly 300-page manual contains 16 chapters addressing all aspects of the inspection and enforcement process, including, for example, chapters on “inspection procedures,” “violations,” “penalties and debt collection,” and “post-citation procedures and abatement verification.” In basic terms, the FOM shows much of what OSHA does, how it does it, and the respective rights of employers and OSHA. It serves as an instructional tool for both OSHA inspectors and employers alike. A complete copy of the 2015 updated Field Operations Manual can be found here.
President Obama signed the Bipartisan Budget Act of 2015 into law yesterday. The deal was negotiated quickly to avoid a default on the nation’s debt. Perhaps as a result, it includes a surprise for those with an interest in occupational safety and health: penalties imposed by the Occupational Safety and Health Administration (OSHA) are increasing. Title VII of the Budget Act—entitled the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015—requires mandatory upward adjustments of multiple civil penalties, including those proposed by OSHA. By no later than July 1, 2016, OSHA must issue an interim final rule containing a “catch up adjustment” to its civil penalties. Prior to issuing the interim final rule, OSHA is not required to follow notice-and-comment rulemaking provisions. The changes to the penalty amounts depend upon the cost-of-living adjustments established by the Consumer Price Index (CPI). The initial catch-up adjustment amount will be the percentage difference between the CPI in October 2015 and the CPI in October 1990, which was the year that OSHA penalties were last adjusted.
In view of Bureau of Labor Statistics (BLS) that poultry workers are twice as likely to suffer serious injuries and six times more likely to get sick on the job than other private sector workers, OSHA launched a new Regional Emphasis Program last week to reduce musculoskeletal disorders and ergonomic stressors affecting industry workers. The targeted states include Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, Oklahoma, and Texas – states that include some of the country’s largest poultry producers.
The Bipartisan Budget Act of 2015 contains a few surprises for employers covered by the OSH Act. To date, OSHA’s monetary penalties have not been subject to inflationary increases and, in fact, have been static since 1990. The proposed “Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015” which applies specifically to the OSH Act shakes up the status quo.
At a House subcommittee hearing on October 7, the head of the Occupational Safety and Health Administration, Dr. David Michaels, faced a grilling from Republican lawmakers over recently issued guidance memoranda for agency inspectors and examples of allegedly over-the-top enforcement actions.
MSHA Steps Up Metal/Non-Metal Mine Enforcement and Focuses on Workplace Examinations as Winter Approaches
Citing an increase in the number of fatalities at non-coal mines and the coming of cooler weather, the Mine Safety and Health Administration has announced a stepped-up enforcement to combat hazards and fatality risks.
On October 13, 2015, the Eighth Circuit Court of Appeals ruled in favor of Loren Cook in an 8–4 en banc decision in the carefully-watched machine guarding case of Perez v. Loren Cook Company, Eighth Circuit Court of Appeals, No. 13-1310 (October 13, 2015).
The Surface Transportation Board (STB) has denied a petition by a Texas metal producer that, if approved, would have forced the Union Pacific Railroad Co. (UP) to restore rail service at the producer’s plant in the midst of an employee lockout. The STB is an economic and adjudicatory body affiliated with the U.S. Department of Transportation and set up by Congress, in part, to resolve railroad rate and service disputes.
For the last several years, OSHA has expressed concerns regarding a host of employer practices it believes may result in underreporting of injuries and illnesses as depicted by several recent high-profile cases of alleged employer underreporting. Heightening OSHA’s interest is the position taken by some stakeholders that the annual injury and illness statistics published by the Bureau of Labor Statistics (BLS) underreports the true number of workplace injuries and illnesses due, in part, to employer incentive programs that discourage employees from reporting injuries and illnesses.
Since its inception, OSHA’s mission has been to protect workers and prevent work-related injuries, illnesses, and deaths. OSHA’s standards not only regulate workplace conditions, but also dictate the necessary training requirements employers must provide their employees. These training requirements further OSHA’s philosophy that in order for employees to stay safe, they must have the necessary skills and knowledge to perform their work. Employers are therefore charged with providing essential training as part of their safety programs.
As the Midlands recovers from the effects of widespread flooding, and as rain-swollen rivers reach the coastal portions of the South Carolina, Federal OSHA and SC OSHA have issued warnings about potential hazards encountered in connection with flooding and storm cleanup.
Triggered by an annual fatality rate among oil and gas exploration and production workers that for years was seven times the average for all U.S. workers, the National Institute for Occupational Safety and Health (NIOSH) has put together a draft strategic 10-year research plan to address the issue and is seeking comment from stakeholders on its contents.
Under an exception to the rulemaking process, federal agencies may use legally nonbinding guidance documents to interpret regulations.
OSHA Moves Closer to Finalizing "Improve Tracking of Workplace Injuries and Illnesses" (Electronic Recordkeeping) Rule
On October 5, 2015, OSHA submitted to the Office of Information and Regulatory Affairs (OIRA), a draft final rule for OSHA’s “Improve Tracking of Workplace Injuries and Illnesses.” OIRA is the division within the President’s Office of Management and Budget (OMB) that reviews draft and final standards and regulations. Under Executive Order, all significant regulatory actions require OIRA review before agency actions can be implemented. Generally, OIRA has up to 90 days to review a rule.
OSHA’s new reporting requirements began on January 1, 2015. Under these requirements, employers in federal OSHA jurisdiction are required to report to OSHA any work-related fatality or any work-related injury resulting in an employee being formally admitted to the hospital or any work-related amputation or loss of an eye. Since the implementation of these new requirements, OSHA estimates that it is receiving 200 to 250 reported incidents each week.
Mine regulators have no statutory authority to issue emergency “j” orders for immediately safeguarding people following a mine accident unless rescue and recovery is involved, the Federal Mine Safety and Health Review Commission has ruled. Section 103(j) of the Mine Act gives the Mine Safety and Health Administration authority to take appropriate action to assure personnel safety after an accident “where rescue and recovery work is necessary.”
The Occupational Safety and Health Administration has pledged to release a comprehensive final rule on crystalline silica by the end of the current Administration, in January 2017.
When the outdoor temperature tops 80 degrees Fahrenheit, the cool, air-conditioned comfort of a retail store may be a refuge for salespeople, but it is easy to forget that many other retail employees (including truck drivers, loaders, mechanics, janitors, maintenance personnel, cart attendants, and warehouse crews) may be feeling the heat in their workplaces.
Many more franchisors are likely to be judged to have a joint employer relationship with franchisees, subjecting them to enforcement by the Occupational Safety and Health Administration, under a draft policy reported to be circulating within the Department of Labor (DOL).
Coal haulage machines and scoops operating in working sections of underground coal mines will be required to be outfitted with proximity detection devices on a phased-in schedule if a proposed rule issued by the Mine Safety and Health Administration is finalized.
On August 26, 2015, a Virginia news reporter, Alison Parker, and a photojournalist, Adam Ward, were tragically shot down by a former colleague while conducting a live television broadcast in Moneta, Virginia. The gunman was later confirmed to be a former reporter at the victims’ news station, who was fired for disruptive conduct in 2013. Such acts of workplace violence are senseless and unpredictable, but there are ways to mitigate dangers still.
Around the same time the National Labor Relations Board (NLRB) issued its controversial and precedent-shattering decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, a franchise industry group revealed that the Occupational Safety and Health Administration (OSHA) is also targeting companies with franchising business models.
A judge’s decision to award lifetime workers’ compensation benefits to the widow of a Colorado oil and gas worker who died from toxic gases after opening a tank to measure oil levels could reverberate throughout the industry.
Parties to whistleblower disputes have a new way to resolve their differences using the Occupational Safety and Health Administration’s “early resolution” process.
In an interpretation letter dated June 1, 2015, OSHA answered the question “Under OSHA regulations 29 CFR 1926.95(a) who is responsible for the laundering of fire retarding clothing that is provided to employees?” The section states that protective equipment “shall be provided, used, and maintained in a sanitary and reliable condition” but does not elaborate on how this should be achieved.
Citing its 1994 legal decision holding that the “wholesale incorporation of a litigant’s brief is a questionable judicial practice,” the Federal Mine Safety and Health Review Commission has remanded for further analysis a judge’s determinations regarding enforcement actions taken against a Virginia coal operator and vacated others.
Noting that the manufacturing sector experienced more than twice the rate of amputations as that of the entire private sector in 2013, the Occupational Safety and Health Administration has updated its nine-year-old National Emphasis Program (NEP) on amputations.
In what the Occupational Safety and Health Administration described as a collaboration among government, industry, and organized labor, the safety agency has proposed a comprehensive rule to reduce exposure to beryllium among employees in general industry.
Facing a lawsuit by the mining industry over a an amended rule targeting “pattern” violators of the Mine Safety and Health Administration’s (MSHA’s) safety standards, the agency has announced the revised rule is “a law that now works.”