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Total Articles: 311

Congress has Voted to Kill OSHA’s “Volks Rule – So What Does that Really Mean?

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.

Top 10 OSHA Citations for 2016

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.

OSHA’s Volks Rule Overturned by Congressional Review Act

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.

House of Representatives Votes to Block OSHA Recordkeeping 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.

Senate Votes to Disapprove Obama-Era Fair Pay and Safe Workplaces Executive Order

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.)

Quashing Lawlessness: Congress Votes on OSHA’s Attempt to Avoid the Volks Decision

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?

OSHA Identifies 10 Most Cited Safety and Health Violations

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.

Signs that OSHA Priorities are Shifting Under the Trump Administration?

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.

What to Expect from OSHA Under President Trump

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.

Establish a Strong OSHA Defense Before an Inspector Shows Up

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.

OSHA 300A Summaries Should be Completed and Posted by Now

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.

It’s Time Again to Post the OSHA 300A Annual Summary of Illnesses and Injuries

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.

OSHA Issues Final Rule to Protect Workers from Beryllium Exposure

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.

MSHA Decision Pending on the Effective Date for the Workplace Examination Final Rule

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.

OSHA’s New Chemical NEP: Serious Violations Preferred and EPA Referrals Encouraged

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.

OSHA Emphasizes Worker Safety in Sustainability

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.

OSHA Mandates That Certain Employers Report Accidents Electronically

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.

Farewell Dr. Michaels

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”).

A New Series: Practical Advice for 2017

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.

Don’t Get Sued Here

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.

Seventh Circuit Sets Groundbreaking Precedent, Reverses FRSA Retaliation Judgment

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.

OSHA Requests Information on Prevention of Workplace Violence in Healthcare and Social Assistance

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 Whistleblower Update: The Curious Case of the Expanding Agency

Did you know that the Occupational Safety and Health Administration (OSHA) enforces and investigates claims under 22 different federal whistleblower laws, ranging from Section 11(c) of the OSH Act to the Clean Air Act, the Consumer Financial Protection Act of 2010, the Safe Drinking Water Act, Sarbanes-Oxley and the Surface Transportation Assistance Act?

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.

OSHA Finally Issues Walking-Working Surfaces Rule

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.

OSHA Anti-Retaliation Rule Will Take Effect December 1

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).

OSHA Wants Public Assistance with Leading Indicators Guidance

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

Court Denies Temporary Injunction on OSHA’s Electronic Reporting Regulation

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.

Did These 10 OSHA Rules and Initiatives Die With the Election of Donald Trump?

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 Updates Guidelines for Safety and Health Programs

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.

OSHA Issues New Guidelines for Safety and Health Programs

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.”

OSHA Issues Guidance Memo on Incentive, Disciplinary, and Drug-Testing Programs

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.

Which Election Will Really Affect Labor, Employment and Safety Regulation?

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 To Leave OSHA in January

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.

OSHA Clarifies Limits on Post-Accident Drug Testing and Safety Incentive Programs

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’s 2016 Top Ten Violations

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.

OSHA Quietly Issues Guidance on Incentive Programs, Disciplinary Programs and Drug-Testing Programs

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.

OSHA Proposes to Apply Its Lockout Standard to Expected Startups

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.

OSHA Pushes Back Enforcement Date for Anti-Retaliation Provisions Again

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.

OSHA’s Walking-Working Surfaces Final Rule Expected Soon

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.

U.S. Court of Appeals Blocks New OSHA Fertilizer Rules Because of Improper Rulemaking

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).

OSHA and DOT Issue Joint Memorandum on Hazardous Chemicals

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”).

Lawsuit Filed Against OSHA on Walk-Arounds

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).

OSHA Requests Information on Shipyard Safety Rules Covering Falls

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.

OSHA Issues Report on the Impact of the Severe Injury Reporting Program

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.

OSHA Clarifies Cranes and Derricks in Construction Standard for Moving Grave Headstones, Monuments

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.

OSHA’s Final Rule on Crystalline Silica Standards

Earlier this year, the Occupational Safety and Health Administration (OSHA) published its long-awaited final rule ( 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.

Lawsuit Challenges OSHA’s "Union Walk Around Rule"

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!

OSHA: Summer Fun, Employers Feel the Burn

If asked to write an essay about what they did over the summer, the good folks at OSHA would have quite a lot to cover this fall. In fact, it would be difficult to know where to begin with so many rules announced and enforcement actions taken; so, let's start with one of the things that makes the world go 'round—money.

State Safety Plans Object to Federal OSHA Fine Increases

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.

Preparing for an OSHA Interview Under the Current Administration

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.

OSHA Reports Many State Programs Did Not Meet 2015 Performance Goals

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.

OSHA Issues Special Zika Guidance to Employers

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.

Temporary Workers: Staffing Agencies Jointly Liable for OSHA Violations

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.

OSHA Launches Summer Heat Safety Campaign

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.

Doctor Recommendations Are Medical Treatment According to OSHA

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.

OSHA Settlement May Point Direction on Injury Reporting Policies

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.

OSHA Delays Enforcement of Anti-Retaliation Provisions

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.

Combustible Dust

OSHA has issued a new Fact Sheet for Combustible Dust Explosion Hazards. See link:

Recent Developments From the Occupational Safety and Health Administration

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.

OSHA Penalties Increase by 78.156% Effective August 1, 2016

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.

OSHA Officially Increases Civil Penalties by 78 Percent

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.

Construction Contractor Faces Manslaughter Charge in Worker’s Death

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.

Dealing With OSHA’s New Enforcement Landscape

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 Enforcement Heats Up

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.

Heat, Lightning Hazards are Focus of Federal Safety Campaigns

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.

Safety Agencies Expect to Release 9 Rules This Year

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.

OSHA Issues New Spring Regulatory Agenda

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.

OSHA Issues Final Recordkeeping Rule Requiring Electronic Submissions

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.

OSHA Adds Chapter on Fall Protection to its Technical Manual

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.

New Workplace Injuries, Illnesses Rule Mandates Electronic Information Submission, Bars Retaliation

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.

OSHA, NIOSH Release Joint Guidance on Zika Virus Prevention

Federal government agencies have released interim guidance to provide employers and workers information and advice on preventing occupational exposure to the Zika virus.

Centers for Disease Control and Prevention Revises Guidance on Heat and Hot Environments

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.

Blowing the Whistle on Food Safety: OSHA Issues a Final Rule Related to FDCA Complaints

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.

OSHA Lauds Success of Reporting Rule While Threatening Tough Consequences for Noncompliance

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.

OSHA Ups the Ante for Employers That Fail to Report Workplace Injuries

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.

OSHA Announces Sweeping Changes in Final Rule on Silica

The Occupational Safety and Health Administration (OSHA) has released its final rule on occupational exposure to respirable crystalline silica.

OSHA, Focusing on Meat Processing Industry, Launches Emphasis Programs for Three Midwestern States

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.

OSHA Continues to Turn Up the Volume on Whistleblowing

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.

A Beginner’s Guide to OSHA’s Final Silica Rule

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.

Looking Beyond OSHA for Fall Safety Resources

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.

Defective Loader Moves Too Slowly to Cause Injury, Judge Says, Finding Mine Violation Not Serious

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.

OSHA, FCC Closing in on Best Safety Practices for Communications Tower Workers

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.

Creating A Safety-Conscious Culture Where The Rubber Meets The Road

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.

OSHA Enforcement Program Targets Midwest Manufacturing Industries

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.

Mine Safety Citation for Poor Illumination Not Justified, Judge Rules

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).

Safety Milestones Set in Mining Sector in 2015

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.

Powered Truck Group Renews Alliance with OSHA

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.

11th Circuit Upholds Mining Agency’s Coal Dust Rule, Phase-In Continues

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.

Labor Board Subpoenas Allowed before OSHA Consultation

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.

Judge Vacates Citations for Alleged Slack in Steering Mechanisms of Mine Vehicles

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.

OSHA May Have Given Up on Combustible Dust Rule before End of Obama Administration

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.

Meeting OSHA's Reporting Requirements – Po..

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.

Groundbreaking OSHA Developments in 2015 to Directly Impact 2016 — and Beyond

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).

OSHA Launches the Serious Event Reporting Online Form

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.

Feds Launch Initiative to Toughen Penalties for Worker Safety Violations

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.

OSHA Sends Respirable Crystalline Silica Rule to OMB for Final Review

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.

OSHA Teams Up with Department of Justice to Utilize Criminal Prosecution to Protect Worker Safety

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.

OSHA and MSHA Criminal Prosecutions – DOJ Announces New Procedures After CEO Verdict

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.

Increased Criminal Enforcement for Worker Safety Violations?

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.

Top Five OSHA Changes to Watch for in 2016

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.

OSHA Holds Public Meeting on its New Voluntary Safety and Health Program Management Guidelines

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:

OSHA Holds Public Meeting on its New Voluntary Safety and Health Program Management Guidelines

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.

OSHA Gets Authorization to Boost Penalty Amounts

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.

Commercial Drivers Get Added Protection against Coercion in New FMCSA Rule

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.

OSHA Rule Makers to be Busy in First Half of 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.

Sparse Regulatory Agenda Belies Coming Final MSHA Rule on Civil Penalties By Mark Savit

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.

OSHA Announces New Web Page on Violence Prevention in Health Care

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.

Mine Case Highlights Shortcomings in Part 50 Audits of Occupational Injury and Illness Reporting

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.

OSHA Seeks Comment on New OSHA Safety and Health Management Program Guidelines

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 ( update the agency’s 1989 safety and health program management guidelines.

OSHA Launches Webpage Addressing Preventing Workplace Violence in Healthcare

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 Launches Preventing Workplace Violence in Healthcare Webpage

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:

OSHA Law Blog Live: OSHA’s New Safety and Health Program Management Guidelines

This podcast discusses OSHA’s updated guidelines on safety and health management programs, which have been put out for public comment

Nine Reasons To Worry About Safety Compliance (Hospitality Industry)

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?

Imminent Danger Rulings Reveal Divergent Opinions Among Commissioners

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.

OSHA Provides Retailers With Crowd Management Safety Guidelines During Holiday Season

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).

OSHA Anticipates Issuing Several New Final Rules in Early 2016

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.

MSHA Directs Enforcement Attention to Hazards of Confined Spaces

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.

OSHA Law Blog Live: OSHA’s Regulatory Agenda is Out!

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.

OSHA targets more manufacturing industries for amputation inspections

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.

Who is Responsible for Recording Injuries and Illnesses of Temporary Workers?

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.

Commission to Test OSHA’s Use of Its General Duty Clause for Enforcement

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:

OSHA Request Public Comment on Whistleblower Guidance Document

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.

State OSHA Programs Can Be Significant Source of Big Fines

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.

The November Surprise: OSHA Raises Penalties 82% And No One Notices

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%.

OSHA Issues Updated Version of Its Field Operations Manual

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 Signs the 2015 Budget Act Increasing OSHA Penalties

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.

OSHA Launches Regional Emphasis Program in Southern States Aimed at Protecting Poultry Workers

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.

OSHA Penalties Going Up?

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.

House Lawmakers Grill OSHA Administrator on Enforcement Issues

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.

Eighth Circuit Rejects OSHA’s Interpretation of Guarding Standard in Worker Fatality Appeal

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).

Surface Transportation Board Backs Railroad’s Denial of Service during Labor Dispute

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.

Safety incentive programs: Ready or not, here comes OSHA!

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.

OSHA Releases Updated Training Handbook For Employers

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.

Flooding, Storm Cleanup, and OSHA

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.

NIOSH Seeks Comment on Research Plan for Oil and Gas Industry

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.

Lawmakers Pledge Action to Curb Agency Guidance Documents

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 Inspecting 40 Percent of Reported Injuries

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.

Rescue and Recovery Work Necessary for Valid MSHA ‘j’ Order, Commission Rules

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.”

OSHA Promises Silica Rule Soon, but Its Future Remains Uncertain

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.

Sales May Sizzle, But Keep Employees Cool

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.

Draft DOL Policy Lists ‘Economic Realities’ as Key OSHA Test of Joint Employer Status

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).

MSHA Proposes Proximity Detection Rule for Mobile Equipment in Underground Coal Mines

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.

Combating Unpredictable Workplace Violence Under OSHA’s General Duty Clause

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.

OSHA Testing Joint Enterprise Theory in Wake of NLRB Ruling

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.

Judge’s Ruling in Oil and Gas Worker’s Death Could Spark Change

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.

OSHA Launches Process to Streamline Resolution of Whistleblower Complaints

Parties to whistleblower disputes have a new way to resolve their differences using the Occupational Safety and Health Administration’s “early resolution” process.

Laundering Responsibilities for FR Clothing

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.

Mine Safety Commission Overturns, Remands Parts of Judge’s Ruling

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.

OSHA Updates Its National Emphasis Program on Amputations

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.

OSHA Cites Newly Released Beryllium Proposal as Collaborative Effort

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.

Undaunted by Lawsuit, MSHA Boasts POV Reforms are ‘Real Game Changers’

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.”

OSHA Cites Newly Released Beryllium Proposal as Collaborative Effort

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.

MSHA Kicks Off Third Initiative in 14 Months to Stem Fatality Trend

After two failed attempts to stop a trend showing an increased number of fatalities in the Metal/Non-Metal (M/NM) sector of mining, the Mine Safety and Health Administration has launched a third initiative — this time, clearly intending a different outcome.

Judge Reproaches OSHA for 'Affirmative Misconduct' over Enforcement Action

Vacating citations against a Texas company, an administrative judge has lambasted the Occupational Safety and Health Administration for having “fallen short of any standard of decency, honor, or reliability” by citing the company for alleged violations occurring during a period in which OSHA had agreed in a written settlement the company could establish a program to prevent such violations.

OSHA Updates the National Emphasis Program on Amputations

OSHA’s National Emphasis Program (“NEP”) on Amputations has been in effect since 2006 but on August 13th the Agency issued an updated NEP (CPL 03-00-019) that significantly expands the industries targeted for inspections. The updated NEP applies to general industry workplaces in which any machinery or equipment likely to cause amputations is present. According to the NEP, targeted inspections will include an evaluation of employee exposures during operations such as normal operations; clearing jams; making adjustments while machinery is running; cleaning, oiling or greasing machines or machine pans; and locking out machinery to prevent accidental start-up.

OSHA Proposes New Rules Revising Recordkeeping Requirements

The Occupational Safety and Health Administration (OSHA) has proposed new rules intended to clarify its recordkeeping obligations. If finalized, the new rules will allow OSHA to fine an employer for failing to record an injury or illness even outside of its six-month inspection time frame.

MSHA Launches Two New Safety and Health Initiatives

The Mine Safety and Health Administration has introduced a pair of initiatives, one in response to a recent increase in fatalities in the metal/nonmetal (M/NM) sector of mining, and the other following a report by an agency watchdog, which concluded MSHA could do more to address alleged

OSHA Moves to Enforce Workplace Violence Incidents in Healthcare

The Occupational Safety and Health Administration’s efforts to address workplace violence in the healthcare industry have received a boost from a recent administrative law judge’s decision affirming OSHA citations following an employee’s death at work and, in another case, from an OSHA settlement calling upon a healthcare provider to implement an employee workplace violence prevention program nationwide.

OSHA Issues Extensive Hazard Communication Directive

On July 20, 2015, OSHA published a long awaited Directive on the revised Hazard Communication Standard (“HCS”), Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079. The Directive is intended to provide inspection and enforcement guidance to compliance officers regarding the final Hazard Communication Standard published in March 2012. However, the Directive also serves as a valuable tool to employers implementing the requirements on the revised Hazard Communication Standard. The 124-page Directive provides guidance in the areas of Hazard Classification, Labels, Safety Data Sheets (“SDSs”) and Employee Training.

OSHA Attempts to Overturn AKM-Volks Decision through Proposed Rule

In 2012, the U.S. Court of Appeals for the District of Columbia held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Refusal to Cooperate With OSHA Leads to Federal Criminal Contempt

For what is believed to be the first time in OSHA history, a company recently was found in criminal contempt for refusal to comply with a warrant obtained by OSHA inspectors to conduct an inspection. A Missouri foundry, its owner, and three representatives of an independent safety-consulting company were found in criminal contempt by a federal judge for refusing access to the site by OSHA inspectors. The U.S. District Court in Kansas City ordered Martin Foundry Co., Inc., owner Darrell Stone, and representatives of Compliance Professionals, Inc. to jointly pay $10,778 to reimburse departmental costs. In addition, Martin Foundry and Darrell Stone were fined $1,000 for their failure to cooperate. Each of the three consultants were fined $2,000 for willfully impeding OSHA’s investigation and refused to comply with the warrant.

OSHA Issues New Interpretations of its Process Safety Management Standard

OSHA has recently issued several memoranda updating guidance on its Process Safety Management (“PSM”) standard. On June 5, 2015, OSHA issued a memorandum to Regional Administrators explaining how inspectors should enforce recognized and generally accepted good engineering practices (“RAGAGEP”) requirements. Among other things, OSHA explained that when an employer’s internal standards are more stringent than the relevant published RAGAGEP and the employer fails to follow its own more stringent internal requirements, OSHA may cite the employer under the relevant section of the PSM standard. A copy of the June 5, 2015 memorandum can be found online.

MSHA Workplace Examination "Clarification" Places Enforcement Target Squarely on Operators

Over the years, the Mine Safety Health Administration (MSHA) has tried on two different occasions to overhaul the workplace examination standard at 30 CFR §56/57.18002 by issuing program policy letters. The agency’s primary goal in each of those efforts was to expand the recordkeeping requirement in the regulation to require operators to record conditions identified in the examination. In each case, following industry challenges, the agency was forced to withdraw its new policy and concede that the regulation does not contain such a requirement. These concessions were ultimately based on the recognition that such substantive changes to the regulatory requirements of the standard would necessitate notice and comment rulemaking that afforded stakeholders appropriate input.

Citing ‘Questionable Practices,’ Judge Raises Coal Contractor’s Fine

An administrative law judge for the Federal Mine Safety and Health Commission raised a proposed fine against a West Virginia trucking company by nearly $10,000 after questioning the credibility of a company supervisor and its mechanic and determining the firm had either misplaced or destroyed potentially compromising pre-operational (pre-op) examination records about the condition of brakes on a haul truck. Secretary of Labor v. Lincoln Leasing Co., Inc., No. WEVA 2012-1783 (FMSHRC July 13, 2015).

OSHA Enforcement Directive on HazCom Compliance a Mixed Blessing

A new directive from the Occupational Safety and Health Administration on enforcing the agency’s Hazard Communication (HazCom) standard describes requirements that appear to impose new, unforeseen paperwork and compliance burdens on employers even while providing useful clarifications on some issues for employers and enforcement personnel.

Workplace Safety and Health Update - Week of July 20, 2015

We are pleased to bring you our Workplace Safety and Health Update. With experienced OSHA and MSHA attorneys located strategically throughout the nation, Jackson Lewis is uniquely positioned to serve all of an employer’s workplace safety and health needs.

Expansion of Mine Safety Workplace Exam Requirements Likely to be Announced

The Mine Safety and Health Administration appears to be readying a new policy that could significantly expand and re-interpret mine operator responsibilities in conducting workplace examinations.

Here We Go Again—The Robert C. Byrd Mine Safety Protection Act

For the fourth time since the Upper Big Branch coal mine explosion in April 2010, a Congressional bill proposes to further amend the Federal Mine Safety and Health Act of 1977. The Robert C. Byrd Mine Safety Protection Act was first introduced on December 3, 2010, and again on April 15, 2011, and March 21, 2013, without variation in the proposed law and without success.

OSHA Offers Free On-Site Consultations to Improve Workplace Safety

Through its On-Site Consultation program, OSHA wants to help small to medium-sized businesses improve and maintain workplace safety standards. In most cases, OSHA representatives will travel directly to your workplace and conduct a detailed inspection. The OSHA representative will identify potential hazards, discuss potential solutions, and review and improve injury prevention programs. This free service is confidential and operates separately from OSHA’s inspection branch. Neither identifying information nor discovered hazards will be routinely reported to OSHA inspection staff. Additionally, no citations are issued during the consultation.

Workplace Safety and Health Update - Week of July 13, 2015

We are pleased to bring you our Workplace Safety and Health Update. With experienced OSHA and MSHA attorneys located strategically throughout the nation, Jackson Lewis is uniquely positioned to serve all of an employer’s workplace safety and health needs.

Summer is Coming. And OSHA Wants to Help Workers to Beat the Heat

It may not be officially summer just yet, but with the rising temperatures and bright sunny days, it is just around the corner. And while the summer heat means days spent at the beach and backyard barbeques, it also means an increased risk of heat-related illness and death. According to OSHA, each year, dozens of workers die and thousands more become ill due to working in the heat. While the majority of these incidents are from the construction industry, this issue affects all industries that involve outdoor work. To raise awareness and help protect workers, OSHA has partnered with the National Oceanic and Atmospheric Administration and the National Weather Service. This is the fifth year these organizations have joined together to raise awareness in the prevention of heat-related injury and death at the workplace.

OSHA Rule Regarding Confined Spaces "Hooked" In Texas

Recently, the Texas Association of Builders (“TAB”) filed a petition in the Fifth Circuit Court of Appeals seeking a review of a newly finalized OSHA rule, which was aimed at reducing confined space risks in construction activities. The TAB petition potentially hinders the rule’s implementation, delaying years’ worth of the rule’s development by the Bush and Obama Administrations.

OSHA Issues Guidance on Restroom Access for Transgender Workers

The Occupational Safety and Health Administration (OSHA) has published guidance for employers on best practices regarding restroom access for transgender workers. Employers must abide by OSHA's sanitation standard, which requires that all covered employers provide employees with sanitary and available toilet facilities. The guidance clarifies that imposing unreasonable restrictions on a transgender employee's use of toilet facilities violates the sanitation standard.

Despite Fewer Citations Issued Since 2008, the Percentage of "Significant and Substantial" Citations Is Holding Steady

The Mine Safety and Health Administration (MSHA) recently released mining industry and enforcement data that reflects noteworthy changes the industry has experienced over the last six years. Of particular significance in the data from an enforcement perspective is the fact that, while the overall number of mines has decreased and there has been a reduction in numbers of citations and total civil penalties, the percentage of citations marked “significant and substantial” (S&S) has held steady across the industry. In sum, the number of S&S citations has not decreased at the rate one would expect given the overall reduction in alleged violations.

OSHA Issues Guidelines for Providing Restroom Access to Transgender Employees

Continuing the trend by federal agencies toward greater protections for transgender employees, the Occupational Safety and Health Administration (OSHA) released “A Guide to Restroom Access for Transgender Workers” on June 1, 2015.

OSHA Issues Final Rule to Increase Protections Afforded to Construction Workers in Confined Spaces

Working in confined spaces exposes construction workers to many hazards, including asphyxiation, explosions, electrocutions and toxic substances. Until recently OSHA had one provision in its construction standards setting forth a general training requirement when employees worked in confined spaces. This provision (29 CFR 1926.21(b)(6)) provided limited guidance, instructing employers to train employees as to the nature of the hazards involved, the necessary precautions to be taken and in the use of required protective emergency equipment.

OSHA Announces Final Rule for Confined Spaces in Construction

On May 1, 2015, Dr. David Michaels, the head of the Occupational Safety and Health Administration (OSHA), and Deputy Secretary of Labor Christopher P. Lu announced the issuance of OSHA’s long-awaited Confined Spaces in Construction standard. Prior to issuing this new standard, OSHA had one existing provision in its construction standards for a general training requirement applicable to employees working in confined spaces. The new standard was published in the Federal Register on May 4, 2015, and becomes effective on August 3, 2015.

Death On the Job: Not Quite as Bad as it Sounds

I was shocked this morning on one of the business news summaries I get to see a report that 150 Americans die from hazardous working conditions each day. To me that was a shocking figure.

OSHA Citation to General Contractor Underscores the Need for Proper Equipment and Safety and Health Programs

OSHA recently cited a Florida general contractor – retained to restore the concrete finish on high-rise apartment buildings – for 17 “serious” safety and health violations and proposed penalties of $119,000. (A “serious” violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.)

OSHA Announces Request for Information on Communication Tower Safety

On April 15, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a Request for Information (RFI) on Communication Tower Safety. The agency requests that the communication tower industry and the general public send in comments and information by June 15, 2015, about the hazards and safety issues for employees working on communication towers.

OSHA Updates its Guidelines for Protecting Workers from Workplace Violence

Healthcare and social service workers face significant risks of job-related violence and it is OSHA’s stated mission to help employers address these serious hazards. According to the Bureau of Labor Statistics, more than 23,000 significant injuries due to assault at work occurred in 2013. Notably, more than 70 percent of these assaults were in the healthcare and social service sectors. Workers in these areas are reportedly more than 4 times as likely to be injured due to violence in the workplace than the average private sector worker.

Updates and Studies: Top OSHA-Related News for the Week

The following are highlights of the OSHA-related news for the week

U.S. Department of Labor Files OSHA Whistleblower Suit in New York Federal Court

OSHA is responsible for enforcing the whistleblower provisions of the Occupational Safety and Health Act and twenty-one other statutes which are designed to protect employees who report violations of various laws in a broad variety of areas. Under the Occupational Safety and Health Act, the U.S. Department of Labor is authorized to file suit against employers who retaliate against whistleblower employees.

OSHA To Host Second Annual Fall Safety Stand-Down in May 2015

From May 4-15, 2015, OSHA will be hosting its second annual National Safety Stand-Down to prevent falls in construction. According to OSHA, jobsite fatalities caused by falls from elevation accounted for 279 of the 806 construction fatalities recorded in 2012. Additionally, fall prevention safety standard violations were among the top 10 citations issued by OSHA in fiscal year 2014.

Tip of the Month: Are You Aware of the New OSHA Reporting Requirements?

OSHA’s new reporting rules expand the list of workplace-related incidents which must be reported to OSHA. Employers should be aware that incidents which in the past did not warrant contacting OSHA must now be reported to the agency.

Lead Exposure Brings $287,440 in Fines from OSHA

Lead exposure can cause long term damage to the central nervous system, urinary, blood and reproductive systems. Without proper protection, employees who encounter lead in the work place can bring this toxic metal home on their clothes, hair and hands. Family members, including pregnant women and children, are put at risk for lead poisoning as a result.

Mine Safety eAuthority (March 2015)

MSHA Tackles Rising Metal/Nonmetal Fatalities.

OSHA's New Reporting Rules Are in Effect—What Will OSHA Do With the Data?

On January 1, 2015, the Occupational Safety and Health Administration’s (OSHA) revised regulation for reporting work-related injuries went into effect. Employers are now required to report fatalities as well as the following types of incidents:

OSHA Tweets New Year’s Reporting Resolutions

As of January 1, 2015, OSHA is setting forth new reporting requirements for employers. According to a recent OSHA “Tweet”, employers will be required to report all work-related fatalities within eight hours and all in-patient hospitalizations, amputations and losses of an eye within 24 hours of learning of the aforementioned accidents. Employers are advised that reporting to OSHA may be performed through the OSHA website or by contacting OSHA via telephone.

OSHA Standards Protect Workers from Exposure to Ebola

Can an employer receive an OSHA citation for failing to protect its employees from exposure to the Ebola virus? Surprisingly, the answer is yes. While most workers in the United States are unlikely to encounter the Ebola virus, workers whose jobs involve healthcare, airline and other transportation operations, cleaning, and environmental services, may be at higher risk for exposure. Under the Occupational Safety and Health Act (“OSH Act”), employers are responsible for ensuring that workers are protected from exposure to the virus.

Contesting an OSHA Citation – Some Basics

An OSHA citation usually comes at the worst time. Actually, is there ever a good time? Probably not. But, what if after receiving a citation you realize you do not agree with it? Or, perhaps, you cannot deny that the violative conduct occurred, but you believe certain mitigating factors should be taken into account that might warrant dismissal of the citation or a reduction of the penalty. If these thoughts are coming to mind, you may have a basis to challenge the citation.

Expect the Best, Prepare for the Worst: OSHA Enforcement Looms Over Black Friday

“Black Friday” is the day after Thanksgiving and considered by many to be the start of the holiday shopping season. In recent times, the term “Black Friday” has been associated with the concept that retailers’ shift from operating at a loss (or in the “red”) to operating with a profit (in the “black”). The term, however, originated in the 1960s to describe the increased traffic and crowds caused by the combination of shoppers and football fans descending on Philadelphia to attend the annual Army-Navy football game that was traditionally played on the Saturday following Thanksgiving.

‘Tis the (Retail) Season, Part I: OSHA’s Tips for a Safe Black Friday

In advance of the holiday season, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is reminding retail employers to take precautions to prevent workplace injuries during major sales events, including Black Friday. According to a news release issued by OSHA on November 17, 2014, “[t]ragic consequences and risk to workers can occur if the proper safety procedures are ignored.” The release also reminds retailers about the 2008 trampling death of a retail worker when shoppers rushed through the store to take advantage of Black Friday sales. “During the hectic shopping season, retail workers should not be put at risk of injury or death,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “OSHA urges retailers to take the time to adopt a crowd management plan and follow a few simple guidelines to prevent unnecessary harm to retail employees.”

Mine Fatalities: Causes, Prevention, and MSHA Enforcement

A number of fatal mine accidents occurred in the United States between January 1 and September 22, 2014.

Ebola Preparedness

How should an employer respond when it learns that an employee is planning a trip to West Africa to visit family? What if other employees refuse to come to work because they fear that the returning employee may have been exposed to Ebola Virus Disease? Recognizing that the healthcare setting presents special challenges related to infection control and clinical care, how can any employer prepare in advance for situations like those described above?

Tower Talks: DOL, FCC, Telecommunications Industry Join Forces to Prevent Tower Worker Fatalities

In the words of U.S. Secretary of Labor Thomas E. Perez, “[t]he cell phones in our pockets can’t come at the cost of a worker’s life.” On October 14, 2014, the Department of Labor, Federal Communications Commission, and telecommunications industry leaders joined forces to discuss solutions to the surging trend of tragic deaths among cellular phone tower workers.

Ebola Update: CDC to Implement Post-Travel Monitoring Program

On October 22, the Centers for Disease Control and Prevention (CDC) issued a press release indicating that, effective Monday, October 27, a new program will be in place through which federal and state health authorities will monitor— for a period of 21 days—all travelers returning from the West African countries affected by Ebola. This active post-arrival monitoring program “is an approach in which state and local health officials maintain daily contact with all travelers from the three affected countries for the entire 21 days following their last possible date of exposure to Ebola virus.” The CDC will provide travelers whose travel originates in Liberia, Sierra Leone, or Guinea with a kit upon arrival to the United States that contains a thermometer, education materials, a symptom log, and health authority contact information.

Ebola Virus: Frequently Asked Questions

Ebola virus disease (formerly known as Ebola haemorrhagic fever) is a severe, often fatal illness, with a death rate of up to 90%. The illness affects humans and nonhuman primates (monkeys, gorillas, and chimpanzees).

Ebola Resource Center

Fisher & Phillips is monitoring the Ebola situation and will be updating the resource center on a regular basis. The materials on this page have been generated from Fisher & Phillips attorneys and other reliable sources to address the rising concerns of employers regarding the Ebola outbreak. Click on any of the links below to learn more.

OSHA Guidance on Ebola in the Workplace

OSHA has just released guidelines on protecting workers from Ebola in the workplace. Noting that employers are responsible for protecting workers from exposure to Ebola and chemicals used for cleaning and disinfecting, OSHA’s guidelines address cleaning and disinfecting surfaces, areas, and or materials possibly contaminated from blood, urine, feces, vomit, and other bodily fluids that may contain Ebola. In addition, OSHA’s guidelines address the proper waste disposal of potentially contaminated objects. (See OSHA’s Fact Sheet: Cleaning and Decontamination of Ebola on Surfaces.)

Easing Ebola Fears in the Workplace

Howard Mavity was quoted in the Employee Benefit News article "Easing Ebola Fears in the Workplace" on October 17, 2014. The article addressed the rising concerns of employers regarding the Ebola outbreak and reinforced the importance of re-examining workplace travel policies and pandemic plans.

Ebola, Meet The ADA: Advice For Employers On Handling The Outbreak

Kevin Troutman and Matthew Korn’s article “Ebola, Meet The ADA: Advice For Employers On Handling The Outbreak” was featured in Forbes on October 16, 2014.

Are You Prepared to Deal with Potential Exposure to Ebola in the Workplace?

Executive Summary: With the diagnosis of the second Ebola case in the United States on October 12, 2014 – one in which a healthcare worker contracted the lethal disease while performing her job duties – U.S. employers are examining what necessary precautions should be taken to control and prevent the spread of the disease. Perhaps the most important step for employers right now is to become educated and stay informed.

The Employer’s Reference Guide to Information About Ebola

Concerns related to the Ebola outbreak are increasing among both employers and employees in the United States. The outbreak is currently most active in the West African nations of Guinea, Liberia, Nigeria, and Sierra Leone. However, there has been at least one confirmed death from the disease in the United States, and it has recently been reported that an American nurse in Texas who assisted in treating the patient who passed away also recently tested positive for Ebola. The key to preventing the spread of Ebola—as with many communicable diseases—is identifying and isolating potential cases as quickly as possible.

Is your workforce knowledgeable about Ebola . . . and should it be?

Concerns related to the Ebola outbreak are increasing on the part of both employers and employees in the U.S.. While the outbreak is most active in the West African nations of Guinea, Liberia, Nigeria, and Sierra Leone, there has been at least one confirmed case in the United States. The key to preventing the spread of Ebola – as with many communicable diseases – is identifying and isolating potential cases as quickly as possible.

Ebola: Emerging Concerns for Healthcare Facilities and Employers

Recent months have been filled with news reports about the Ebola virus outbreak in West Africa. On August 8, 2014, the World Health Organization (WHO) stated that the spread of the Ebola virus in West Africa had become an “international health emergency,” and the Centers for Disease Control and Prevention (CDC) declared the outbreak the “first Ebola epidemic the world has ever known.” Over 3,300 people have perished from the virus so far, and the virus continues to spread in West Africa at an alarming rate. The BBC reported earlier this week that five people are now being infected every hour in Sierra Leone.

Federal OSHA Proposes to Take Over Enforcement of Construction Standards in Arizona

On August 21, 2014, the federal Occupational Safety and Health Administration (OSHA) proposed to revoke its approval of Arizona’s state occupational health and safety plan with respect to construction. If OSHA follows through on this proposal, Arizona employers that are engaged in construction work and now are subject only to regulation by the Arizona Department of Occupational Safety and Health (ADOSH) will become subject to federal OSHA enforcement and regulation.

Comment Period Extended on Proposed Rule to Improve Tracking of Workplace Injuries and Illnesses

OSHA has announced that it will extend the comment period on the proposed rule to improve the tracking of workplace injuries and illnesses to Oct. 14, 2014. The proposal, published on Nov. 8, 2013, would amend OSHA’s recordkeeping regulation to add requirements for the electronic submission of injury and illness information that employers are already required to keep.

Brooklyn Medical Facility Cited by OSHA for Inadequate Workplace Violence Safeguards

Employees of a Brooklyn medical facility were allegedly exposed to head, eye, face and groin injuries and intimidation and threats during routine interactions with patients and visitors. An inspection by OSHA reportedly found approximately 40 incidents of workplace violence between February 7 and April 12, 2014. These incidents involved employees who were threatened or physically and verbally assaulted by patients and visitors, or when breaking up altercations between patients. The most serious incident was an assault of a nurse, who sustained severe brain injuries when she was attacked while working. As a result of its alleged failure to adequately protect its employees against workplace violence, the medical center faces $78,000 in fines.

OSHA Communicates New Instruction for Communication Tower Personnel Hoists

In 2013, the communications industry was confronted by an increasing number of fatalities involving worker falls from cell tower sites. Alarmingly, OSHA recorded fourteen fatalities, all of which were determined preventable — either a result of an employer’s failure to provide fall protection or an employee’s failure to use the equipment. In the wake of this statistic, on July 17, 2014, OSHA implemented a new directive governing all work activities on communication towers that involve the use of a hoist to lift personnel to or from their workstations.

Keep Your (Employees) Cool This Summer

Last year, some parts of the country experienced the hottest summer on record. This year may well be record breaking as well, at least in some parts of the country. Keeping employees safe and cool during the next four months should be of paramount importance for all business owners and employers.

If You Can’t Stand the Heat . . .You’re Not Alone: OSHA Kicks Off its Annual Heat Illness Campaign

On May 22, the Occupational Safety and Health Administration (OSHA) announced that it was bringing back its heat illness prevention campaign for the fourth straight year. The campaign primarily targets industries with workers exposed to the heat, such as agriculture, construction, landscape maintenance, tree trimmers, and oil and gas drilling and servicing. It also targets industries in which work is performed indoors in hot areas, such as the restaurant and dry cleaning industries. The campaign reminds employers to provide employees with plenty of water, shade, and rest during the summer months. OSHA is devoting much attention to the topic, which inspired the agency’s first and only app (available for free online at iTunes and the Google Android store).

MSHA Assistant District Manager Asserts That Competent Persons Performing Workplace Exams Are Agents of the Operator

At a mining industry safety conference in June, an MSHA Assistant District Manager stated that the agency viewed persons that perform workplace examinations pursuant to 30 C.F.R. § 56.18002 as performing an “agent-like” function that subjects them to the same Mine Act individual liability that can be directed at supervisors and managers. The statement was made while addressing MSHA enforcement efforts and priorities directed at the recent spike in fatal accidents at metal-nonmetal mining operations. The agency believes that some of these fatalities could have been avoided with more effective workplace examinations—a point that MSHA intends to emphasize in upcoming inspections.

Tips For Keeping Your Employees Safe And Cool During The Summer

In 2013, the Phoenix area experienced the hottest summer on record since 1895. As we launch the official summer season this week, keeping employees safe and cool during the next four months should be of paramount importance for all business owners and employers, Shayna wrote.

Miners Can Prevent Fatal Accidents

With a momentary lapse of attention, any of us can cause a grave accident––at home, in a vehicle, on vacation, or at work. Miners must be ever vigilant for their own safety and the safety of others. The mining industry can reduce fatalities and injuries by encouraging employees to identify, correct, and report hazardous conditions. That is the current message of the Mine Safety and Health Administration (MSHA). Another message is that miners are legally protected for engaging in such safety activities, and retaliation by “any person” will be prosecuted.

OSHA and the NLRB Offer Safety Whistleblower Plaintiffs a Second Bite of the Apple by Resurrecting Untimely Whistleblower Claims

In our last Workplace Safety & Health blog post, we discussed proactive steps employers can take should the Occupational Safety and Health Administration (OSHA) arrive with a union representative or community activist to inspect a nonunion worksite. On May 21, OSHA increased its emphasis on promoting employee rights to union representation when Anne G. Purcell, associate general counsel of the National Labor Relations Board (NLRB), issued a memorandum announcing a referral program between OSHA and the NLRB. Under the new program, OSHA will notify all complainants who file untimely whistleblower charges pursuant to section 11(c) of the Occupational Safety and Health Act (OSH Act) that they may also file unfair labor practice charges with the Board under the National Labor Relations Act (NLRA). Purcell’s memorandum follows a March 6, 2014, directive issued by Assistant Secretary of Labor for Occupational Safety and Health David Michaels, wherein OSHA agreed to notify all complainants who file an untimely whistleblower charge of their right to file a charge with the Board.

OSHA and NLRB referral agreement could extend NLRB’s reach into workplace safety issues.

The Occupational Safety and Health Administration (OSHA) is an arm of the U.S. Department of Labor, and is the federal agency charged with the enforcement of legislation related to the health and safety of workers.

How to Manage Your Off-Site Employees' Safety

QUESTION: We have a number of employees working off-site. How can we best ensure that they are working safely when we are not able to provide regular supervision?

How to Be Prepared if a Non-Employee Union Agent Shows Up with OSHA at an Inspection

As we discussed in a previous post, the Occupational Safety and Health Administration (OSHA) issued an interpretation letter last year stating that non-employee union organizers or community activists could “represent” employees at non-union workplaces during OSHA inspections. OSHA’s interpretation letter caused quite a stir in the employer community, and it has been reported that, OSHA is trying to include non-employee union organizers in some inspections. This post provides practical advice to employers on steps they can take should OSHA arrive with a union representative for an inspection of a nonunion worksite.

Is OSHA's Temp Worker Initiative Foreshadowing Things To Come?

I support OSHA’s temporary worker focus. Employers need to take more steps to ensure that temporary employees don’t fall through the cracks and do not receive adequate safety training, Howard wrote.

My Supervisor Violated the OSHA Standard. What Do I Do Now?

Supervisors are supposed to set the tone, provide on-the-job training and consistently enforce safety processes. What happens when the supervisor is the one who breaks the rules? OSHA decisions and OSHA compliance officer training expressly state that the employer’s entire safety program is suspect when its supervisors violate the standards. The higher up the supervisor, the bigger the problem. Not only does the supervisor’s bad conduct negatively frame the inspection and OSHA’s ultimate decisions, but the supervisor’s involvement has legal consequences.

The Lion Bite Case Sleeps in Nevada, But It’s a Whale of a Story

The tragic death of an orca (commonly called killer whales) trainer at SeaWorld of Florida in 2010 has stimulated much debate on whether direct contact between wild animals and humans should be permitted in entertainment contexts, and whether the Occupational Safety and Health Administration (OSHA) should regulate this activity. Federal OSHA responded to the SeaWorld accident by issuing citations alleging willful violations of its General Duty Clause, which can be applied when no standard addresses a hazard. OSHA has invested significant resources to pursue the case, which is now pending before the District of Columbia Circuit Court of Appeals.

OSHA Tasked by Congress to Protect Whistleblowers

The Occupational Safety and Health Administration has been tasked by Congress to enforce the whistleblower provisions of 22 different statutes. These laws protect workers in many industries throughout the country from retaliation when they report unsafe working conditions, fraud or something that would endanger the public.

OSHA Signals an Increased Focus on Hospital Industry

On January 15, 2014, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new, online compliance assistance tool for hospitals called, “Worker Safety in Hospitals: Caring for our Caregivers.” While OSHA’s stated objective for this resource is commendable—to help hospitals enhance worker safety—the information includes some generalizations that could be initially disconcerting, which may detract from the resource’s general credibility.

OSHA creates new on-line resource for hospitals and healthcare entities.

According to the Department of Labor’s Occupational Safety and Health Administration (OSHA), hospital workers regularly face serious workplace hazards, including exposure to chemicals, hazardous drugs, and needle-sticks. Those workers often suffer musculoskeletal injuries that come from manually lifting and repositioning patients.

OSHA Extends Silica Rule Comment Deadline to February 11

On the afternoon of January 24, 2014, with one-and-a-half business days left to the original deadline of January 27, the Occupational Safety and Health Administration (OSHA) announced a 15-day extension of the comment period to the agency’s proposed rule on occupational exposure to respirable crystalline silica. The new deadline is February 11, 2014.

Are Your Employees Properly Trained to Ensure Their Safety at Work? If Not, Employer Penalties May Not Simply be Fines, but Imprisonment

Employers in all industries face the problem of training workers and ensuring their safety. Whether it is preventing burns from the hot oil of the french-fry maker or teaching skills to handle a heightened risk of workplace violence, employers need to make sure their employees are appropriately trained so the workplace is safe. Without such measures, as one court has ruled, potential fines and monetary payments may not be enough and prison time may be imposed.

OSHA's new online form provides an easy method to workers for filing whistleblower retaliation claims.

The federal Occupational Safety and Health Administration (OSHA) works to ensure safe and healthy conditions for working men and women on a national basis, by both setting and enforcing workplace standards, and by providing training, education and assistance to employers and employees, when necessary or requested. The agency also enforces the whistleblower protection provisions of twenty-two different statutes, protecting employees who report violations of consumer protection laws and against employers engaged in particular industries, including airlines, trucking, rail, and public transportation.

So You Think OSHA Doesn't Apply? ... Here Are Four Ways It Does

Many employers, especially white collar and non-industrial employers, think they are exempt from the requirements of the Occupational Safety and Health Act ("OSH Act") due to the nature of their businesses. However, the jurisdiction of the Occupational Safety & Health Administration ("OSHA"), which enforces the OSH Act, is broad and over-arching. All employers are covered. The following are just some examples of programs or policies that OSHA requires every employer to have in place regardless of the nature of its business.

How To Manage An OSHA Inspection

Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why an employer should take certain steps. Readers already know to take photos whenever the Compliance Officer takes shots and to take notes, but do you know "why" to take those photos and "what" to look for? What do you need to note in order to challenge citations when they are issued six months later?

OSHA Proposes Further Restriction of Silica Exposures

OSHA has regulated occupational exposures to airborne silica since 1971 and has recently proposed significant revisions to its regulations limiting workers' exposure to airborne silica. These revisions are explicitly intended to extend the scope of the regulation to additional workers, employers and occupations. Because silica is present in virtually all sand, cement, stone and glass products, it is important for all employers, particularly those not subject to the original silica standard, to determine whether the proposed amendments will subject them to regulation and possible fines and penalties.

Federal Court in Minnesota Provides Guidance on Non-Injury Retaliation Claims Under FRSA

Granting complete summary judgment to BNSF Railway Co., Chief Judge Michael Davis of the U.S. District Court for the District of Minnesota interpreted and provided the railroad industry with guidance pertaining to the parameters of a non-injury based retaliation claim under 49 U.S.C. § 20109 of the Federal Railroad Safety Act (FRSA)—an issue of first impression in the district, and one of only a few such decisions nationwide. Kuduk v. BNSF Railway Co., No. 12-cv-00276 (September 26, 2013).

Tracking Patterns of Violations in Mines

In the mining industry MSHA enforcement of “pattern of violations” sanctions can be devastating to a mine operator’s business. Every operator is potentially subject to a “pattern of violations” notice from the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA). Mine records are reviewed by MSHA every year to determine if there is a pattern of violations that could “significantly and substantially contribute to the cause and effect of a mine safety or health hazard.” This terminology from the Federal Mine Safety and Health Act of 1977 is liberally construed to include any violation that an MSHA inspector concludes is “reasonably likely” to cause a reasonably serious injury—even a sprain in some cases.

Even When Supervisors Foul Up, OSHA Has to Prove Their Case

Employers are not guilty until proven innocent. Napoleonic justice is not the law of the land. To make out an OSHA citation, OSHA has the burden to prove four (4) elements: an applicable standard, that a hazard existed, an employee was exposed, and that the employer knew, or should have known of the violation.

MSHA Demands for Company Files Upheld by Federal Appellate Court

“Congress has given . . . MSHA powerful tools to protect miners. Those tools include demands to inspect documents.” That is what the United States Court of Appeals for Seventh Circuit recently held in Big Ridge vs. Federal Mine Safety and Health Review Commission.

Why Safety Requires Consistent Discipline

An effective safety process requires consistent discipline to support other company safety efforts, but it doesn’t always happen.

Non-Union Employees at Worksite Safety Inspections Contradicts OSHA Regulation and Creates Host of Issues for Employers

With private sector union density steadily declining, unions will take help anywhere they can get it. The most recent case in point: the Occupational Safety and Health Administration (OSHA) issued an interpretation letter on February 21, 2013, stating that non-union employees can select anyone—including outside, non-employee union representatives—to accompany OSHA compliance officers during safety and health inspections of an employer’s work site.

Escalating Enforcement by MSHA of Prohibition against Advance Notice of Inspection

Section 103 of the Federal Mine Safety Act requires the Secretary of Labor to conduct frequent inspections and investigations at mines. It further states: “In carrying out the requirements of this subsection, no advance notice of an inspection shall be provided to any person.” Section 110(e) provides: “Unless otherwise authorized by this Act, any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be punished by [fine, imprisonment, or both].” A recent Senate bill would extend penalties to federal and state inspectors as well as all private persons.

OSHA Opens Worksites to Allow Union Representatives to Participate in Walk-around Inspections of Non-Union Companies

In a new letter of interpretation publically released on April 5, 2013 (originally dated February 5, 2013), the Occupational Safety and Health Administration (OSHA) announced for the first time that during an OSHA inspection of non-union worksites, employees can be represented by anyone selected by the employees including outside union agents.

Cussing Out Your Employee May Get You Sued...By OSHA?

Hopefully you're already aware of the continuing escalation of all forms of whistleblower and retaliation claims, including under the 20+ Anti-Retaliation laws enforced by special investigators from OSHA's Whistleblower group. If not, check out the Whistleblower Protection Program website.

MSHA's Still Making Its POV List, But No Longer Checking it Twice

The Mine Safety and Health Administration (MSHA) recently released a Final Rule that significantly changes the way the Agency charged with protecting America’s miners enforces one of its most powerful enforcement tools: pattern of violations (POV).

Employment Law Made Un-Scary: OSHA

Everything you need to know about OSHA in one handy post.

Getting Off OSHA's "Black List"

After two years of uncertainty, employers have finally been given some guidance on how to be removed from OSHA's Severe Violator Enforcement Program (SVEP). On August 16, 2012, the Directorate of Enforcement Programs (DEP) issued a memorandum detailing the removal criteria for the SVEP, clarifying a process that has not been clear since the implementation of the program in June 2010.

MSHA/OSHA Report (August 21, 2012)

MSHA Update; OSHA’s Oil & Gas Flame Resistant Clothing Memo Held to Be Improper Rulemaking; Final Electric Power Transmission and Distribution and Electrical Protective Equipment Rule Goes to OMB.

OSHA Ratchets Up Heat-Related Inspections; Expect State Plans Like Nevada to Follow

Under pressure to respond to the risks to employees created by the nationwide heat wave this summer, the U.S. Occupational Safety and Health Administration (OSHA) recently instructed its field enforcement staff, “to expedite heat-related inspections and to issue citations, where appropriate, as soon as possible.” Heat-related inspections are to occur on days when the National Oceanic and Atmospheric Association (NOAA) issues a heat advisory forecasting a heat index at or above the “danger zone” for a particular area. OSHA investigators have been instructed to determine whether employers are, at the very least, providing employees with adequate access to water, rest periods, and shade. These directions are contained in a Memorandum issued on July 19, 2012 by OSHA’s Director of Enforcement and signed by the agency’s second-in-command, Deputy Assistant Secretary Richard Fairfax.

OSHA Whistleblower Protections In Schools

The Labor Department recently strengthened its Occupational Safety and Health Act Whistleblower Program by dedicating additional funds to training its investigators, performing more thorough investigations, and reassigning responsibility for the Whistleblower Program directly to the Office of the Assistant Secretary of Labor for greater oversight of the program. Schools are covered by the OSH Act, and like most industries, should expect to see an increase in whistleblower claims under the newly-fortified program.

Top 10 OSHA Citations In The Healthcare Industry, Part 2

Following up on the discussion in our last issue of the Healthcare Update, this month we are examining one of the most rigorous and demanding areas of OSHA compliance – failure to meet the information and training requirements of the Bloodborne Pathogens Standard (BBP).

Mine Operators: No-Fault Liability Extended to Independent Contractors

The District of Columbia Circuit Court of Appeals has ruled that an independent contractor may be held liable for a violation on mine property even if the contractor was not at fault. This unprecedented ruling affirms a decision of the federal Mine Safety Review Commission in Ames Construction, Inc. v. Federal Mine Safety and Health Review Commission and Secretary of Labor.

Employers Need to Be Aware of New Modifications to OSHA's Hazard Communication Standard

On March 26, 2012, OSHA revised its Hazard Communication Standard (“HazCom”), aligning it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”). The revised Standard is intended to help workers better understand chemical hazards in the workplace and to improve safety training related to those hazards. The revisions to the Standard include: (1) changes to the criteria for classifying chemicals according to their hazard level; (2) changes to the labeling system to ensure consistency in labels and Safety Data Sheets; and (3) changes to the training requirements on the new labels and Safety Data Sheets. Non-compliance with the updated Standard can result in OSHA citations and fines.

New Rules On Chemical Safety Board Investigations

The U.S. Chemical Safety Board (CSB) announced that it has developed a new policy on employee participation in investigations. The Board hopes to greatly expand the role played by employees in determining the root cause of incidents and promoting facility safety as a part of every CSB Investigation. The policy was approved by a unanimous vote of the Board after a roundtable convened by the CSB in 2011 involving accident victims, family members, and employee representatives.

OSHA Forecast For 2012: Cloudy With Possible Storms

Strategic changes at the Occupational Safety and Health Review Agency in the last several years have resulted in stricter enforcement, larger penalties, greater compliance requirements and new regulations. This year we expect to see many of the proposed rules and initiatives that OSHA has been pushing make significant progress within the regulatory process, and maybe even come to life.

New OSHA HazCom Rule: What It Means for Employers

The what, when and why of the new OSHA Hazardous Communication standard

The Wait Is Over – OSHA Publishes Final Hazard Communication Standard

In a much anticipated move, on March 20, 2012, the federal Occupational Safety and Health Administration (OSHA) released the final revised Hazard Communication Standard. The final standard will be published in the Federal Register on March 26, 2012, and will become effective, in part, on June 26, 2012, with a built-in transition period and a fully effective date of June 1, 2016.

OSHA's Twin Sister Is In Your Backyard

You would be hard-pressed to find someone who has not heard of OSHA. OSHA's presence is felt by employers across broad segments of American industry, from construction to food service. What many people don't realize, however, is the pervasiveness of OSHA's (older) sister agency, the Mine Safety and Health Administration, or MSHA.

MSHA/OSHA Report (February 2012)

Criminal Conspiracy Charged; OSHA Releases Videos on Respirators;Posting Injury and Illness Summary.

Top 10 OSHA Citations In The Healthcare Industry

Each year the Occupational Safety and Health Administration (OSHA) issues hundreds of citations to employers in the healthcare industry. While medical centers, doctors' offices, and clinics must all comply with a significant number of standards, the citations issued to hospitals remain relatively constant from year to year.

MSHA/OSHA Report (January 2012)

Mine Safety Disclosures Required in SEC Reports; OSHA Issues I2P2 White Paper and Moves Forward with Small Business Review.

OSHA Announces New Focus Areas

The Occupational Safety and Health Administration has recently announced three new focus areas targeting hazards in certain specified work environments. These include: winter storm months, chemical facilities, and formaldehyde exposure in the hair product/salon industry.

MSHA/OSHA Report (December 2011)

MSHA Flagrant Violation Policy for $220,000 Penalties Rejected; New Rim Wheel Service Guidance; OSHA Expands National Emphasis Program (NEP) for Hazardous Chemicals.

OSHA Compliance For Restaurants

Restaurants and their trade associations are justifiably proud of their food safety efforts as shown by the July 27, 2011 announcement by the National Restaurant Association celebrating over one million classes of restaurant industry training. But inspections by the Occupational Safety and Health Administration (OSHA) continue to turn up significant shortcomings in restaurant OSHA compliance – and these issues are not limited to the large institutional setting.

Tips For Protecting Your Workers From The Cold

Recent temperatures in the northeast were near record lows, meaning employees working in cold temperatures could face serious health risks. Cold weather is particularly dangerous to employees spending long hours outside, such as construction workers. Prolonged exposure to freezing or cold temperatures can result in serious health problems like trench foot, frostbite, hypothermia, and in extreme cases death. With winter bearing down upon us, it is a good time to familiarize yourself and your employees with the danger signs and important tips to protect them from the cold weather and potentially serious health threats.


Call for Felony Prosecution Power for MSHA Violations; Call for Public Hearings for Accident Investigations – Subpoena Power; OSHA Update - Recordkeeping Enforcement; OSHA Update - BLS Workplace Injury Data for 2010.

MSHA Update - Issues of Fairness with Regular and Special Assessments Review

By law, civil penalties can become final only when approved by the Federal Mine Safety and Health Review Commission. Thus, penalty assessments issued by MSHA are “proposed” only. By a legal fiction, they can become final orders of the Federal Mine Safety and Health Review Commission, if not timely contested. Final penalties are to be based on consideration of six criteria in the Federal Mine Safety and Health Act: 1) history of violations; 2) size of business; 3) negligence; 4) ability to continue in business; 5) gravity; and 6) good faith in abatement. Operator contests typically dispute all or some of these findings.

OSHA 2011 Site-Specific Targeting Directive

Each year, OSHA revises its Site-Specific Targeting Directive based on the previous year’s data relating to workplace injuries and illnesses. OSHA “uses these data to calculate establishment-specific injury/illness rates, and in combination with other data sources, to target enforcement and compliance assistance activities.” Based on the results, locations with higher incident rates are scheduled for comprehensive inspections, including review of OSHA 300 logs for at least three of the past four years.

MSHA Update - Civil Penalty Deadlines

There are basically two types of civil penalty deadlines. There is a statutory deadline for operators to file notices of contest challenging the civil penalty and related citation and findings. There is also a deadline under the rules of the Federal Mine Safety and Health Review Commission for the Secretary of Labor (MSHA) to respond to operator contests by filing a petition for assessment of civil penalty with the Commission within 45 days. (The law actually calls for the Secretary to notify the Commission “immediately” upon receipt of an operator contest, but no consequences were established by Congress if this does not happen.)

OSHA Update - Employers as Guardians Against Violence

Earlier this month, OSHA issued Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents. This new Directive is aimed at providing compliance officers guidance for responding to, and inspecting, allegations and incidents of workplace violence. In conjunction with the Directive, OSHA launched a new webpage focused on preventing workplace violence.

Retail Industry - The Injured Worker: Practical Approaches For Avoiding Lawsuits

Retail jobs almost all require certain physical capabilities. These can include physical work such as moving heavy inventory, pushing a mop, bending to assist a customer in getting a product off the bottom shelf, or handling merchandise at the cash register. Employees with physical limitations that prevent them from performing all the functions of their job can be difficult to manage.

MSHA/OSHA Report (August 2011).

Large Rock Leaving Mine After a Blast is Declared an “Accident”; OSHA Update.

MSHA Update

New issues have prompted noteworthy rulings by administrative law judges. While judge’s decisions are not binding precedent, they can influence other judges and are sometimes cited by the Federal Mine Safety and Health Review Commission.

OSHA Update - Draft Proposed I2P2 Regulation Is Expected by Mid-August

As part of the rulemaking process and pursuant to the Small Business Regulatory Enforcement Fairness Act (SBREFA), OSHA will soon convene a panel of small business members to review and comment on a draft of the Injury and Illness Prevention Program (I2P2) regulatory text it anticipates publishing as a proposed rule. The agency recently announced that it expects to provide SBREFA members this draft by mid-August. The I2P2 rule remains one of the agency’s top priorities. Agency officials have indicated that they want to issue a final I2P2 rule in the next four years.

MSHA/OSHA Report (June 2011)

MSHA Enforcement - Document Demands; OSHA Document Demands; OSHA Update - Confined Spaces; OMB Review of Silica Rule Extended; National Survey on Employer Safety and Health Practices; OSHA Takes Aim at the Primary Metals Industry.


MSHA Enforcement Update; OSHA Update - Heat Related Illnesses; I2P2 Remains on OSHA's Agenda for 2011; OSHA Enforcement Update.

MSHA/OSHA Report (April 2011)

MSHA Enforcement – Whose Employees Are These?; OSHA Enforcement.

MSHA/OSHA Report (March 2011).

MSHA Budget—Oversight—Internal Review; Air Contaminant Survey Requirements; Workplace Examinations; OSHA Budget—OSHA Enforcement; New Guidance for PPE.

Crowd Control Tips From OSHA

In 2008, an employee of a major retailer was trampled to death by a stampede of customers surging into the store looking for Black Friday deals. On the same day, two customers in another chain had a shooting match resulting in both dying, although it does not appear to have been a shopping-related incident.

The Lucky 13.

13 Strategies To Improve Safety, Reduce Exposure, And Improve Profits The new administration's focus at OSHA, and other government agencies, focuses less on compliance and increasingly more on enforcement. That means more inspections, more audits, and more fines. Here are some ways you can help your company stay out of trouble.

Mine Safety eAuthority (July 2010).

Miner Safety and Health Act of 2010 Clears Committee on Party-Line Vote – Most Surface Mines and Non-Gassy Metal/Nonmetal Mines Excluded

New Legislation Proposes Sweeping Changes to OSH Act

On July 21, the House Committee on Education and Labor approved the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663). The name of the bill is misleading, because in addition to addressing mine safety, the bill also proposes comprehensive revisions to the Occupational Safety and Health Act of 1970 (OSH Act).

Miner Act 2010?

The House Education and Labor Committee, chaired by Representative George Miller of California, recently drafted a bill (H.R. 5663) entitled the “Miner Safety and Health Act of 2010.” The measure’s stated purpose is to improve safety compliance, “empower workers to raise safety concerns,” prevent tragedies and establish victims’ rights.

Don't Let OSHA Spoil Your Summer Fun.

As summer approaches, companies begin preparing for morale-building activities such as company-sponsored picnics, amusement park outings and other activities meant to build camaraderie and reduce stress. But employers should remember that any injuries sustained during such company-sponsored activities may need to be recorded on their Occupational Safety and Health Administration (OSHA) injury and illness logs.

Shelter From The Sun: Heat Protection for Employees in Arizona.

Arizona leads the nation in heat-related deaths, nearly all of which occur during the hot summer months. Companies with outdoor workers need to review their policies regarding the protection of workers from the elements.

Federal Government Announces A New Nevada OSHA Office: What This Means To You.

The federal Occupational Safety and Health Administration (OSHA) recently announced that it has, for the first time ever, opened an office in Nevada. The new office, which opened in early May, is located in Las Vegas.

Don't Let Employees Get Hurt As You Dig Out.

In the midst of finding childcare for children unexpectedly home from school, coping with business disruption, power outages, and dangerous streets, we often forget that winter storms, like hurricanes, pose special workplace hazards especially when employers begin to clean up and restore business. Many fatalities, injuries, and OSHA citations occur as employees perform non-routine tasks after the storm eases.

Retail Industry Update: There's A New Sheriff In Town - President Obama's Enforcement-Driven OSHA.

Throughout his campaign, Sen. Barack Obama continually promised change if he was elected President, and he is now making good on that promise. If you read the safety-activist blogs and media reports, many seem to believe that OSHA is broken and the Obama Administration has to fix it. They cite the decrease in OSHA funding (adjusted for inflation) and a decrease in the number of OSHA inspectors as proof positive that this is not the OSHA that should be.

Disciplining Unsafe Behavior: Cornerstone of an Effective Safety Program.

Regardless of the outcome of the November Presidential election, an emboldened Congress will demand passage of numerous workplace-safety laws already introduced, including the radical Protecting American Workers Act. Observers also expect a shift in OSHA efforts from some cooperative programs to a more punitive and politicized enforcement effort, coupled with the departure of many evenhanded career professionals from OSHA and other agencies. Next to preparation for the possible passage of the Employee Free Choice Act (see Cute Titles for Bad Laws in May, 2008 Labor Letter) no area should receive more employer attention as 2008 comes to an end.

OSHA Form 300A Must Be Posted By February 1, 2008.

Most employers are required under the federal Occupational Safety and Health Act of 1970 to maintain an ongoing record of occupational injuries and illnesses. Employers must use the Occupational Safety and Health Administration’s (OSHA) Form 300, the “Log of Work-Related Injuries and Illnesses” to classify work-related injuries and illnesses. The OSHA Form 300 is also used to note the extent and severity of each case.
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