Total Articles: 426
OSHA Clarifies Its Position On Post-Accident Drug Testing; States That “Most Instances of Workplace Drug Testing Are Permissible”
In a memorandum to Regional Administrators dated October 11, 2018, OSHA clarified the agency’s position as to whether certain types of drug testing would be considered violations of 29 C.F.R. §1904.35(b)(1)(iv). That regulation prohibits employers from discharging or discriminating against an employee for reporting a work-related injury or illness.
On September 27, 2018, the U.S. Department of Labor (DOL) published a notice of proposed rulemaking expanding the employment, training, and apprenticeship opportunities for 16- and 17-year-olds in healthcare occupations by removing the prohibition on teen employees operating patient lifts. Currently, the DOL’s Child Labor Hazardous Occupations Order No. 7 bars teen employees from working in occupations that require the operation of power-driven patient lifts, treating these types of lifts essentially as equivalent to construction equipment. In the proposed rule, however, the DOL acknowledges that patient lifts differ substantially from construction equipment such as forklifts, backhoes, and cranes.
We've waited for over a year to learn if the 11th Circuit Court of Appeals would uphold an earlier court decision saying that OSHA could not expand an injury-based inspection by arguing that injury records and an a Regional Emphasis Program justified the expansion. Not surprisingly, OSHA had appealed the earlier decision.decision.
We regularly remind employers that third parties, such as unions, and social justice and environmental groups, will use safety as a club to embarrass and bring pressure on a company. Sometimes, these third parties use workplace safety as such an issue even when it conflicts with other tenants of left-leaning groups, such as environmental responsibility or solar power.
The U.S. Occupational Safety and Health Administration (OSHA) recently announced an update to its National Emphasis Program (NEP) on preventing trenching and excavation collapses.
While President Donald Trump’s choice to lead the Occupational Safety and Health Administration (OSHA) is awaiting Congressional confirmation, key agency decision makers are listening to the construction industry.
Three years after introducing new severe injury reporting requirements that require employers to report any work-related amputation, in-patient hospitalization, or loss of an eye to OSHA within 24 hours of the incident, and fatalities within 8 hours, the Office of the Inspection General (OIG) conducted an audit to determine if OSHA had effectively implemented these new requirements.
For me, the anniversary of 911 is principally for remembering and paying respect to the 2996 victims at the Twin Towers, the Pentagon and that Pennsylvania field, as well as the many individuals who have lost their life and limbs since that day protecting their fellow citizens. Thousands in Iraq, Afghanistan and others in hot spots around the world … or in the day to day accidents that are inevitable to the operation and training of our military. (See, The Cost of War Since September 11, 2001 and The DOD Casualty Report) I realized the other day that because of IEDs, it is now common to see young men and women with high-tech artificial legs. The list could go for pages if we consider emergency responders, police, various civil servants and countless others.
In response to OSHA’s announcement in May this year that the agency would not require the electronic submission of 300 Logs or 301 Forms for employers with establishments of 250 or more employees, Public Citizen, a consumer rights advocacy group, filed a lawsuit in the U.S. District Court for the District of Columbia challenging OSHA’s suspension of the requirement to electronically submit the 300 Log or 301 Forms.
While recently meeting with a group of contractors, I noticed that three large general contractors were requiring their employees to wear safety helmets instead of traditional hardhats, despite the approximately $120 cost per helmet. Futuristic Kask helmets were the helmet of choice. Kask states that the helmets satisfy ANSI Z89.1-2014. Technical specs. Arguably the most important aspect of the helmet was the chin straps.
Your employees could be at a heightened risk for developing an addiction to opioids after a workplace injury. Now is the time to take measures to minimize the risk of this happening to them.
Executive Summary: On July 27, 2018, the Occupational Safety and Health Administration (OSHA) issued a news release stating that it has issued a Notice of Proposed Rulemaking to “better protect personally identifiable information or data that could be re-identified with a particular individual by removing provisions of the ‘Improve Tracking of Workplace Injuries and Illnesses’ rule. OSHA believes this proposal maintains safety and health protections for workers, protects privacy and reduces the burdens of complying with the current rule.”
The Occupational Safety and Health Administration (OSHA) has issued a Notice of Proposed Rulemaking (NPRM) to remove provisions of the "Improve Tracking of Workplace Injuries and Illnesses" rule. The agency said that the changes are meant to protect employees' personally identifiable information or data that could be re-identified with a particular individual. Observers expected these changes following OSHA's announcement in the 2017 regulatory agenda that it would review the Obama-era rule.
On Monday, July 30, 2018, the Occupational Safety and Health Administration (OSHA) issued a proposed rule to abolish much of the existing electronic reporting obligations for establishments with 250 or more employees. Under the proposed rule, OSHA would drop the requirement for establishments with 250 or more employees to electronically submit injury or illness data (OSHA Form 300) or incident reports (OSHA Form 301).
On July 30, 2018, the Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking (NPRM) in the Federal Register seeking comments on a proposed measure that would partially rescind the 2016 amendments to its recordkeeping rule. The 2016 amendments required establishments with at least 250 employees, or with at least 20 employees in a high-risk industry, to electronically submit their illness and injury records to OSHA annually, beginning in 2017. However, OSHA was not accepting OSHA 300 and 301 forms on its portal for the July 1, 2018, deadline.
Today OSHA formally published a Notice of Proposed Rulemaking (NPRM) in the Federal Register revising the Obama-era regulation, Improve Tracking of Workplace Injuries and Illnesses. The proposed rule rescinds the requirement for establishments with 250 or more employees to electronically submit information from the OSHA 300 Log and 301 Form and adds a requirement for covered establishments to include the Employer Identification Number (EIN) with their submissions.
OSHA Update: Court of Appeals Upholds Employer's Criminal Liability and Maximum Fine in Employee's Death
On July 17, 2018, the U.S. Court of Appeals for the Eighth Circuit affirmed a verdict that had found an employer criminally liable for an employee's fatal fall. Declining to overturn the lower court's decision, the three-judge panel found that prosecutors presented sufficient evidence to support the company’s conviction for willfully violating safety regulations and causing the worker’s death.
Put simply, OSHA has suspended the July 1 requirement that covered Employers must submit the detailed OSHA Form 300 detailing all 2017 recordable injuries, and the individual Form 301 (First Report of Injury) for all recordable 2017 injuries.
Celebrity Apprentice: Head of OSHA Edition. Which Celebrities Are Qualified to Lead the Occupational Safety and Health Administration?
On October 27, 2017, Scott Mugno was nominated by President Donald Trump to lead the Occupational Safety and Health Administration (OSHA) as the agency’s assistant secretary of labor. Mugno is the former head of Federal Express’ Safety, Health and Fire Protection division, a strong believer in employee safety, and is extremely qualified for this post. Unfortunately, however, Mugno has not yet been confirmed by Congress to take the position and OSHA remains without a leader.
In a May post we noted that OSHA had moved closer to publishing a proposed rule revising the Obama-era regulation, Improve Tracking of Workplace Injuries and Illnesses by submitting the proposed rule to the Office of Management and Budget (OMB) for review under Executive Order 12866. This review was completed yesterday, July 23, and now signals that OSHA has jumped the final hurdle before it can publish a new proposed rule. In the Spring Regulatory Agenda, OSHA identified July as its target date for issuance of a Notice of Proposed Rulemaking. OMB’s completition of its review suggests that OSHA will likely issue a proposed rule in the Federal Register soon, possibly making its projected timeframe.
When one hears about a workplace shooting, it’s easy to demand a “Zero Tolerance” rule against workplace violence. It’s understandable that after the staggering and even criminal revelations of the #METOO Movement that employers would want to nip harassment and discrimination in the bud before it rises to the level of unlawfulness. And in the safety setting, a single violation of Lock Out or Confined space entry procedures or removal of a guard could result in multiple deaths or grievous injuries. No violation is acceptable.
It might sound crazy, but the Occupational Safety and Health Administration (OSHA) may now be receiving whistleblower complaints over the phone. This follows a recent ruling from a federal court in Wisconsin, which made it easier for employees to file whistleblower complaints against their employers.
Part II - Corporate campaigns - first the press and then the OSHA complaints....
In 2016, the Occupational Safety and Health Administration (OSHA) amended its recordkeeping rule to require that certain establishments electronically submit their illness and injury records annually, beginning in 2017. For the first year, covered establishments were only required to submit their OSHA Form 300A. The next round of submissions is due on July 1, 2018 and, in addition to the OSHA 300As, would have included the submission of OSHA 300 Logs and OSHA 301 Incident Reports for certain covered establishments.
In its latest Regulatory Agenda, the Occupational Safety and Health Administration (OSHA) indicated that it was undergoing rulemaking to revise the “Improve Tracking of Workplace Injuries and Illnesses” regulation promulgated under the Obama Administration. OSHA noted it was considering deleting the requirement for employers with 250 or more employees at an establishment to electronically submit its 300 Log, 301 Forms, along with the 300A Form.
Don’t Be Late! Recent Decisions Remind Employers that OSHA Citations May Become Final if Not Timely Contested
Two recent cases should remind employers to contest OSHA citations quickly to prevent the citations from becoming final. It’s an uphill battle if your notice of contest is submitted late.
For construction employers facing uncertainty on exactly how the Occupational Safety and Health Administration (OSHA) is enforcing the new silica standard in Construction, we now have a little bit of data that helps shed some light on this mystery. OSHA began enforcing the silica rule in construction on October 23, 2017. As of April 23, 2017, OSHA and State Plans that have adopted the silica rule (a few have not yet done so) have issued 117 violations. OSHA appears to rarely cite violations of the silica standard by themselves; citations are usually accompanied by violations of other standards, such as the fall protection standards. Here are some interesting statistics on OSHA’s first six months of enforcement of the silica standard in construction.
OSHA is a step closer to publishing a proposed rule revising the Obama-era regulation, Improve Tracking of Workplace Injuries and Illnesses. OSHA’s proposal has been submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866. This is the final internal review before the proposal gets published in the Federal Register and signals that OSHA’s Notice of Proposed Rulemaking may be out by late summer.
Administrative Law Judges are increasingly exercising their discretion to waive mandatory settlement conferences for Occupational Safety and Health Administration (OSHA) citation contests with large penalties. The increased penalties that OSHA can now levy may be the reason.
It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. Last week the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
Today marks the first day of OSHA’s 5th annual National Stand-Down. The week-long event aims to focus attention on the fact that “Fatalities caused by falls from elevation continue to be a leading cause of death for construction employees, accounting for 370 of the 991 construction fatalities recorded in 2016 (BLS data).”
In a news release issued today, OSHA notified employers in state plans that they must submit their injury and illness data through OSHA’s portal even if their state has not yet adopted the new requirements of the “Improve Tracking of Workplace Injuries and Illnesses” regulation. According to OSHA,
State Plans Must Abide: Fed-OSHA Fixes Alleged “Error” and Mandates Electronic Reporting of Injuries and Illnesses in All State Plan States
On April 30, the Occupational Safety and Health Administration (Fed-OSHA) reversed course and issued a press release announcing that employers in all state-plan states must implement Fed-OSHA’s new electronic recordkeeping and reporting rule.
The Occupational Safety and Health Act (OSH Act) authorizes the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor to conduct inspections at worksites within its jurisdiction to enforce the safety and health laws promulgated pursuant to the OSH Act. With the U.S. Senate still not confirming President Trump’s nomination of Scott Mugno as the Assistant Secretary of Labor for Occupational Safety and Health, we do not yet know the future direction of OSHA’s enforcement strategy. Thus, for now, it is best to assume no change in direction.
Eleventh Circuit Highlights Importance of Safety Training in Affirming Willful Violation of OSHA Standard
The Eleventh Circuit Court of Appeals recently had the opportunity to remind employers not to ignore training employees on safety. Martin Mechanical Contractors, Inc. v. Secretary, U.S. Department of Labor, No. 17-12643 (March 27, 2018).
During the April 12th U.S. Senate Committee on Appropriation’s Subcommittee Hearing to review the FY2019 Department of Labor Budget Request, Labor Secretary Alexander Acosta was questioned on OSHA’s injury and illness record-keeping regulation passed under Obama’s administration, Improve Tracking of Workplace Injuries and Illnesses.
With the Occupational Safety and Health Administration’s (OSHA) silica standard already in effect for the construction industry and about to go into effect in June of 2018 for general industry, many employers are anxious about whether their programs will pass muster with federal and state OSHA officials. But if you’re in Maryland, worry not. Two years after then secretary of labor Tom Perez heralded the issuance of a final rule on Occupational Exposure to Respirable Crystalline Silica at the International Union of Bricklayers and Allied Craftworkers’ John J. Flynn BAC/IMI International Training Center in Bowie, Maryland, the “Old Line State” has still not adopted a corresponding silica standard.
Scott Mugno’s confirmation to head OSHA appears to be one of three key Department of Labor nominees caught up in political arm wrestling. Republicans are blaming Democrats for delaying the process by drawing out debates to the full 30 hours permitted by the Senate Rules. Senate Majority Leader Mitch McConnell (R-KY) voiced his frustration on April 9th warning that “[t]he Senate’s workweek will not end until all of these amply qualified nominees are confirmed.” It should also be noted that a Senate vote on Mugno has yet to be calendared.
With what has now become a regular ritual, lawmakers rushed to pass a $1.3 trillion omnibus bill on the last possible day to avoid a government shutdown. The 2,300-page bill was passed by the House last Thursday by a vote 256-167 with many Democrats joining Republicans to support the bill.
OSHA Announces Enforcement Policy for Failing to Electronically Submit Required Injury & Illness Records
Under OSHA’s Improve Tracking of Workplace Injuries and Illnesses regulation, certain employers covered by OSHA’s recordkeeping requirements must annually file either their 300A or their 300A, 300 Log and 301 forms depending on the establishment size and other criteria. For 2017, all employers covered by the regulation were required to file only their 2016 300A form.
Members of a key Congressional committee recently made clear that it is looking to nudge the Occupational Safety and Health Administration (“OSHA”) into a more cooperative direction. Some industry leaders have observed that, under the Trump administration, OSHA has begun to do just that.
OSHA Issues Guidance on How to Cite Employers That Failed to Electronically Submit Injury and Illness Information
On February 21, the Occupational Safety and Health Administration (OSHA) issued new interim enforcement procedures, provided below, regarding failure to submit electronic injury and illness records.
Earlier this month OSHA published a guidance document for the tree care industry, “Solutions for Tree Care Hazards.” The two page publication addresses five major hazards for the tree care industry, including traffic control, chippers, aerial lifts, power lines and drop zones for falling objects.
Can OSHA Look Back Farther than 5 Years for Repeat Citations? Recent Court Decision Reaffirms that there Is No Limitation on OSHA’s Repeat Violation Period
Until 2015, it was the practice of the Occupational Safety and Health Administration (OSHA) to look back only three years to establish “repeat” violations under the Occupational Safety and Health Act (OSH Act). In 2015, OSHA increased that period to five years. The United States Court of Appeals for the Second Circuit reminded us this week that OSHA is actually not bound by any temporal limitation to establish repeat violations.
A 2017 report on fatal workplace injuries shows that fatalities jumped 7 percent in 2016. The Bureau of Labor Statistics' Census of 2016 Fatal Occupational Injuries reported 5,190 workplace fatalities in 2016, compared to 4,836 in 2015. It also noted an increase in deaths related to opioid use.
Employers covered by OSHA’s recordkeeping rule are required to prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” beginning February 1 and keep the form posted until April 30. The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.
Starting the year with a bang, the Cal/OSHA Division said it intends to finalize several new standards this year, including on indoor heat illness prevention. It also intends to release new workplace violence prevention for general industries regulations and new regulations to affect the Cannabis industry. The agency has scheduled three advisory meetings within the next month.
Folks who follow my writing know that of the many groups to which I speak, the AGC National Safety Committee is my favorite. I love the industry and I value the clients and contacts who have become friends, even Bob Emmerich, Jim Goss, Bo Cooper, Rick Reubelt, Carl Heinlein, Kevin Turner, Tommy Lee, and of course, our AGC leader, Kevin Cannon.
Not only is the Occupational Safety and Health Administration (OSHA) continuing to crack down on employers suspected of retaliating against employees who blow the whistle and will not hesitate to pursue litigation on behalf of employees, OSHA considers lawsuits against whistleblowers to constitute adverse action for purposes of finding unlawful retaliation.
OSHA Anticipates More Changes to the Electronic Recordkeeping Rule: What Does It Mean for Employers?
The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017, and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.
Most folks in the safety community know Jordan Barab, the former Obama era Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017. You can read Jordan’s take on OSHA, MSHA, safety and anything related to employees and politics on Twitter at @jbarab. His email is firstname.lastname@example.org. I am unapologetically a Management Labor Lawyer and serve as an advocate for Employers, so it may surprise my readers that I am going to post his comments to one of my recent posts.
American Voters Got Coal in their Stocking from Senate Dems: Over 100 Nominees Must be Re-nominated.
Now career government workers cannot do their jobs because dozens of empty leadership positions remain unfilled. Before you complain that some of Trump’s nominees are underqualified – you are correct – consider these facts:
Employers covered by the recordkeeping requirements in Section 1904 are reminded that Friday, December 15th is the DEADLINE to electronically submit their 2016 300A. This requirement applies to establishments with 250 or more employees and to establishments in certain high-risk industries with 20 or more but less than 250 employees.
It’s that time of year again: for employers to celebrate the successes of the prior year and make plans and resolutions for the new one. But OSHA and MSHA are making New Year’s resolutions, too, and employers are well-advised to consider what actions these agencies may take in 2018 that could affect their businesses.
Although the Department of Labor under new Labor Secretary Alex Acosta has indicated that it will be scaling back on the broad interpretation of joint employer for purposes of determining enforcement liability, on November 6, 2017, OSHA filed an appeal to the U.S. Court of Appeals for the Fifth Circuit seeking to preserve the agency’s multi-employer citation policy which has been in place for decades.
Employers covered by federal workplace safety recordkeeping regulations have an additional two weeks to electronically file their 2016 injury and illness data. The Occupational Safety and Health Administration (OSHA) has extended the date by which employers must electronically report their Form 300A data through the agency's Injury Tracking Application (ITA) to December 15, 2017.
On November 21, 2017, the Occupational Safety and Health Administration (OSHA) extended the date by which employers must electronically report injury and illness data through the Injury Tracking Application (ITA) (https://www.osha.gov/injuryreporting/index.html) to December 15, 2017.
Today OSHA announced that it will delay the electronic submission requirements for employers covered by the recordkeeping requirements in Section 1904 until December 15, 2017. Last year OSHA finalized its Improve Tracking of Workplace Injuries and Illnesses regulation, which established new requirements for certain employers to electronically submit their injury and illness recordkeeping forms via a secure website. Specifically, employers covered by OSHA’s recordkeeing requirements must either file their 300A or their 300A, 300 Log and 301 Forms depending on the establishment size and other criteria.
On November 9, 2017, OSHA published a Final Rule further extending by one year the employer duty to ensure the competency of crane operators involved in construction work. Previously, this duty was scheduled to terminate on November 10, 2017, but is now extended to November 10, 2018. OSHA is also further extending the deadline for crane operator certification for one year to November 10, 2018.
I Wonder How Many Other Hollywood Personalities Wish that they had Promised their Boss a Missouri Whooping?
I am not encouraging workplace violence, even for individuals who may deserve a good old fashioned whooping. However, it is worth noting that one of the few Hollywood celebrities to have largely survived the onslaught of harassment claims with some dignity is Brad Pitt. As everyone knows, while dating a young Gwyneth Paltrow, Brad Pitt reportedly confronted Harvey Weinstein, told him to stop harassing Miss Paltrow, and threatened a “Missouri Whooping.” Given the story, I tend to suspect that he actually promised a “Missouri Ass Whipping” (pardon my language).
We encourage larger companies to establish a committee to meet every six to twelve months to engage in “What-if” risk planning. If we have learned anything this year, it’s that businesses face more unexpected risk than ever before.
On Monday, October 27, 2017, President Trump nominated Scott Mugno, currently the vice-president for safety at FedEx Ground, to be the new head of the Occupational Safety and Health Administration (OSHA).
Scott Mugno, a vice president in charge of safety at FedEx Ground, has been nominated to lead the Occupational Safety and Health Administration (OSHA). In nominating Mugno as Assistant Secretary of Labor for Occupational Safety and Health, President Trump continues a pattern of appointing federal agency heads who are willing to scale back regulations.
On October 19, 2017, the Occupational Safety and Health Administration (OSHA) issued Interim Enforcement Guidance for enforcing the Respirable Crystalline Silica in Construction Standard, 29 CFR 1926.1153. OSHA began enforcing the Silica in Construction Standard on September 23, but announced a 30-day "grace period" for construction employers making good faith attempts to comply with the new standard. With the grace period expiring on October 23, construction employers had little idea how OSHA intended to enforce the standard. The new Interim Enforcement Guidance sheds some new light on the subject.
The Oct. 11, 2017, webinar in our Workplaces that Win certificate series consisted of a safety and health update. During the event, we discussed topics that included:
Late last Friday, the White House issued a press release announcing President Trump’s intention to nominate several more key administration officials, including Scott Mugno as Assistant Secretary of Labor, Occupational Safety and Health.
Full enforcement with the Occupational Safety and Health Administration’s new respirable crystalline silica rule in the construction industry began on October 23, 2017, according to the agency. The silica rule is one of the most comprehensive health standards ever issued for the construction industry and significantly reduces the Permissible Exposure Limit (PEL) for crystalline silica.
We’ve had a difficult Summer and Fall ...Hurricanes, the Las Vegas shooting, California fires... and now the firestorm about Presidents contacting family members whose loved ones were killed in battle. Many people have had to deal with friends and coworkers who lost someone.
On August 16th we reported that OSHA had suspended user access to its new Injury Tracking Application (“ITA”) that serves as the web portal for the submission of injury and illness information under OSHA’s “Improve Tracking of Workforce Injuries and Illnesses” rule. The suspension followed a warning by the Department of Homeland Security alerting OSHA to a possible security breach.
The Occupational Safety and Health Administration has announced the Top 10 most frequently cited alleged violations for fiscal year 2017, which ended September 30. The list changes little from year to year, but this year violation number nine, “Fall protection – training requirements,” is new. The top five violations remained identical to the list for FY 2016.
OSHA recently released the top ten violations for fiscal year 2017, which ended September 30. Generally, this list does not change much from year to year with the top three violations always being fall protection, hazard communication and scaffolding. OSHA noted that not all violations had been added to its reporting system but that the list was not expected to change.
OSHA penalties can be costly. In fact, a single “repeat” or “willful” violation can result in a penalty of $126,749. And, if you have multiple violations, that number can increase significantly. This article addresses measures any employer can implement to minimize the risk of costly penalties while—at the same time—promote the most important goal which is to provide a safe work environment for employees.
According to a recent report by the U.S. Department of Labor’s Bureau of Labor Statistics (BLS), women are less likely than men to incur workplace injuries, but the injuries reported by women are disproportionately unique to female employees. In the following four questions and answers, we go behind the numbers to take a closer look at what the data means.
Many companies open certain meetings with a “Safety Minute.” Often, the home office develops weekly or daily Safety Minutes for crews to use at pre-work meetings. Ideally, the Company’s leadership requires other meetings to open with a Safety Minute. Some companies mandate that all meetings open with a Safety Minute. Given our society’s fixation with meetings, we could be talking about a great many Safety Minutes.
Any new presidential administration is likely to bring a new philosophy, vision, and focus to a variety of issues—including workplace safety and health. More than 200 days into the Trump presidency, we take a look below at some of the top developments in OSHA thus far in 2017.
Tomorrow is the much-awaited Eclipse and employers are beginning to worry that they may not have taken all appropriate steps to protect their employees. Shockingly, OSHA does not maintain a Workplace Eclipse Safety Standard. Accordingly, employers should analyze the hazards presented by an Eclipse as they would any other hazard at the workplace. Even if spiders, snakes and poison ivy are universal, employers nonetheless protect their employees from these hazards when present in the workplace.
On Monday we blogged about the availability of the new OSHA Injury Tracking Application (“ITA”) that serves as the web portal for the submission of injury and illness information (300 Logs, 301 Forms and 300A Forms) under OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule (aka Electronic Recordkeeping rule). Yesterday, OSHA suspended user access to the ITA after the Department of Homeland Security notified the Department of Labor of a potential compromise of user information. It appears that only one company has been affected by this breach of security and that company has been notified.
On June 26, 2017, the Occupational Safety and Health Administration (OSHA) announced the return of its heat illness prevention campaign: “Water. Rest. Shade.” As part of the seventh annual heat illness prevention campaign, OSHA’s website outlines the dangers of working in heat, employers’ responsibilities, and additional resources. These include OSHA’s Occupational Exposure to Heat page and the agency’s publications page, which offers educational articles on heat illness in addition to training materials for employers. The campaign’s website also offers employers a number of videos and graphics that are free to use in publications and social media campaigns.
Since OSHA’s mission statement is “to assure safe and healthful working conditions for working men and women,” it’s no surprise that its enforcement authority generally rests with citing employers.
The Occupational Safety and Health Administration has issued a new fact sheet to assist residential construction employers in meeting safety standards in confined spaces, such as attics, basements, and crawl spaces. The Fact Sheet was developed in consultation with the National Association of Home Builders.
The Occupational Safety and Health Administration’s new electronic portal, the Injury Tracking Application (ITA), where employers can file web-based reports of workplace injuries or illnesses, will be accessible beginning August 1, 2017.
It’s that time of year again…when the federal government tells the regulated community what types of rulemaking initiatives that various agencies are undertaking for the year. Today, the semiannual regulatory agenda was published. This Regulatory Agenda provides a complete list of all regulatory actions that are undr active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
OSHA issues press release regarding Portal for Electronic Recordkeeping Reporting to be available beginning August 1
OSHA issued a press release on July 14, 2017 (see link at https://www.osha.gov/injuryreporting/index.html ) regarding the availability of the portal for electronic recordkeeping reporting.
Executive Summary: In May 2016, the Occupational Safety and Health Administration (OSHA) promulgated the Record Keeping Modernization Rule (the Rule) which required certain employers to submit injury and illness data electronically and specifically prohibited employers from retaliating against employees for reporting an injury or illness. We discussed the Rule in our June 20 and November 30, 2016 Alerts.
Construction firms are developing new safety helmets designed to provide workers with better protection from falls and to curb fatal injuries, according to a report from Bloomberg BNA.
The President’s Tweeting dominated our discussions throughout June, with many people asking why does he Tweet? Was it a crafted strategy? A reasonable response to a biased media? A lack of Judgment? Emotional Outbursts?
New questions are emerging about key provisions the Occupational Safety and Health Administration’s updated rule to prevent falls.
The Advisory Committee on Construction Safety and Health (ACCSH) of the Occupational Safety and Health Administration met on June 20, 2017, to learn about and give recommendations on OSHA’s proposed rule to extend the enforcement date for crane operator certification requirements of the revised Crane Standard, 29 C.F.R. 1926 Subpart CC, issued in 2010.
OSHA has proposed to delay the compliance date of the electronic recordkeeping portion of the new recordkeeping regulation, known as “Improve Tracking of Workplace Injuries and Illnesses,” from July 1, 2017 to December 1, 2017 in order to allow OSHA “the opportunity to further review and consider the rule.” OSHA has also invited the public to comment on the proposed deadline extension. Comments may be submitted electronically at www.regulations.gov, or by mail or fax. The deadline for submitting comments is July 13, 2017.
OSHA Seeks Feedback on Proposal to Revoke Certain Provisions of Beryllium Rule Applicable to the Construction and Shipyard Sectors
The Occupational Safety and Health Administration (OSHA) is reconsidering portions of a final rule setting standards for occupational exposure to beryllium.
No one thought that on June 22, we would still not know the Trump administration's enforcement position on the recordkeeping anti-retaliation requirements, including about automatic post-accident drug testing, the Silica standard, or a host of other issues. Republicans cannot solely blame the Democrats and the “Resistance” movement for the delay in thousands of appointments. The administration seems to be distracted by legal claims and to have little interest in appointing crucial agency leaders.
Rulemaking is underway to amend the Federal Acquisition Regulation (FAR) to remove the Fair Pay and Safe Workplaces Final Rule, the General Services Administration has said in guidance to federal agencies instructing them not to wait for the formal rescission to ensure certain contract clauses are not in new or existing government contracts and solicitations.
In its fiscal year 2018 budget, the Trump Administration recommended $543.3 million for the Occupational Safety and Health Administration, a decrease of about two percent from the fiscal year 2017 $552.8 million funding level.
Employers Do Not Have to Report Injury for Employee Who Does a ‘Daily Stretching Program,’ OSHA Says
Employers do not have to report a worker as having an injury if they instruct the worker to do regular stretching exercises for a “minor discomfort,” the Occupational Safety and Health Administration has concluded in an interpretation letter released on May 24, 2017.
Effective June 1, 2017, the Occupational Safety and Health Review Commission (the federal agency that reviews Occupational Safety and Health Administration safety violation cases) adopted the decision by one of its administrative law judges in a significant case for the construction industry.
Federal OSHA as well as the South Carolina and North Carolina labor departments have designated June 12-18, 2017, as the inaugural Safe + Sound Week. The purpose of this nationwide initiative is to raise awareness and understanding of the value of workplace safety and health programs by encouraging employers to plan activities that include the core elements of a successful safety program.
The compliance date for an Occupational Safety and Health Administration rule requiring construction crane operators be certified by a third-party evaluator and designated as “qualified” will be delayed, the agency announced on May 22, 2017.
President Donald Trump has nominated attorney James Sullivan to the U.S. Occupational Safety and Health Review Commission (OSHRC) to fill the remaining vacancy on the three-member commission.
The Occupational Safety and Health Administration has issued two reports on the safe management of hazards by small businesses and storage facilities that use highly hazardous chemicals in business processes.
An appeal pending before the 11th Circuit Court of Appeals (U.S. v. Mar-Jac Poultry, Inc., No. 16-17745, 11th Cir.) reveals a novel approach the federal Occupational Safety and Health Administration (OSHA) is taking to expand inspections resulting from reported injuries or complaints into wall-to-wall inspections conducted under national, regional, and local emphasis programs targeting specific hazards or industries. OSHA has reportedly started conducting inspections under its Chemical National Emphasis, and OSHA’s position as well as the court’s ultimate ruling could affect the way in which these inspections are initiated.
On May 3, 2017, the final curtain was rung down on the Volks saga: OSHA revoked its so-called “Volks Rule,” which would have amended the recordkeeping regulations in 29 C.F.R. Part 1904 to, it hoped, avoid the holding of the District of Columbia Circuit in AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). That decision held that the Occupational Safety and Health Administration (OSHA) has six months, not five and a half years, after a recordkeeping violation to issue a citation. The removal was published at 82 Fed. Reg. 20548 (May 3, 2017).
On April 25, 2017, the Occupational Safety and Health Administration (OSHA) officially rescinded its 2013 letter of interpretation that many viewed as a clear bow to organized labor by the previous administration and that had created the potential to use an OSHA inspection as a union organizing tool. In its 2013 “Walk-Around Letter of Interpretation,” OSHA changed over four decades of prior accepted practice and declared that at non-union workplaces with no recognized collective bargaining agreement or relationship, even just one employee could select an outside/non-employee union organizer to act as an “authorized employee representative” during an OSHA walk-around inspection at the workplace.
Two Massachusetts contractors were operating as a single employer at a worksite in Massachusetts when at least two employees of a roofing crew fell from a wooden plank in October 2014, an Occupational Safety and Health Review Commission administrative law judge has ruled.
President Donald Trump has nominated Heather L. MacDougall, current Acting Chairman of the Occupational Safety and Health Review Commission, to continue as a Commissioner for a second term.
OSHA has provided notice, in the context of an on-going federal lawsuit, (National Federation of Independent Businesses v. Dougherty, N.D. Tex., No. 16-2568, 4/27/17), that it has rescinded the interpretation letter and removed the guidance from OSHA’s Field Operations Manual (FOM).
In February 2013, OSHA issued an interpretation letter in response to a request from the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, which clarified that employees at a non-union worksite could elect to have a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections.
Section 8(a) of the Occupational Safety and Health (OSH) Act of 1970 authorizes OSHA to inspect workplaces “during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner.” While employers have some level of protection since the mandate specifically states the word “reasonable,” more specific rights exist—and should be exercised—at all stages of an OSHA inspection, including before, during, and after the interview process.
Promoting the message, “Young workers! You have rights!” the Occupational Safety and Health Administration has launched a campaign on workplace safety among youth workers.
President Donald Trump is expected to soon sign a Congressional resolution revoking one of several Occupational Safety and Health Administration rules vulnerable to the Congressional Review Act. In response to Dr. David Michaels' argument against Trump signing the resolution in an article previously published by Bloomberg BNA, Partner Edwin G. Foulke has written the following, suggesting that OSHA move away from an enforcement-driven model to a compliance assistance model to help improve safety in the workplace.
Until day 82 of the Trump Administration, renewed partnerships and “guidance” for employers to improve workplace safety have been the subjects of the Occupational Safety and Health Administration’s announcements. On April 12, 2017, OSHA announced that it has cited Atlantic Drain of Boston for willful, repeat, serious, and other-than-serious violations of workplace safety standards and is proposing $1,475,813 in penalties for those violations.
Fatalities from falls continue to be a leading cause of death in the construction industry, and the Occupational Safety and Health Administration is focusing on the dangers with its “Stand-Down” campaign on fall prevention. The annual campaign, scheduled for May 8 to May 12 this year, is to put the focus on reducing fall-related fatalities in the workplace.
Lawlessness Quashed, Part II: President and Congress Stop OSHA’s Attempt to Avoid the Volks Decision
On Monday, April 3, 2017, President Trump signed a Congressional Review Act resolution, passed by the House on March 1 and by the Senate on March 22, that disapproves of the Occupational Safety and Health Administration’s (OSHA) attempt, by mere amendment of its regulations, to effectively extend the statute of limitations for recordkeeping violations from six months to five and a half years.
Yesterday President Trump signed H.J. Res 83, which finalized the Congressional Review Act (“CRA”) process and nullified OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule.
In a move that President Donald Trump is expected to approve, the Senate has voted to repeal a Labor Department rule that allows the Occupational Safety and Health Administration (OSHA) to sanction employers for “failing to make and maintain injury and illness records” beyond the six-month statute of limitations set out in the Occupational Safety and Health Act.
A new rule that effectively extends from six months to five years the statute of limitations during which the federal government may issue citations for recordkeeping violations of the Occupational Safety and Health Act (OSH Act) is expected to be overturned.
f one listens to various Democrat and labor talking heads, you would think that Congress has rolled back 40 years of worker protections by passing a resolution killing the new OSHA rule, which permitted OSHA to cite employers for record-keeping violations up to five years old, rather than the six-month look back applicable to other violations.
The federal Occupational Safety and Health Administration publishes a list annually of its top 10 most frequently cited alleged violations. The list changes little from year to year, but it is worthwhile for employers to review the list and consider whether extra attention should be paid to specific potential hazards in the workplace.
Late today, the Senate voted 50-48 to adopt H.J. Res 83, nullifying OSHA’s rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” informally referred to as the “Volks” rule.
The House of Representatives has voted to block a new Occupational Safety and Health Administration recordkeeping rule implemented in the last weeks of the Obama Administration. “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” was published in the Federal Register on December 19, 2016, and became effective on January 18, 2017.
OSHA Will Partner with Labor Organizations, Trade Associations, and Individual Employers to Train and Protect Workers
OSHA’s Strategic Partnership Program (OSPP) for Worker Safety and Health is a federal initiative that seeks to reduce occupational fatalities, injuries, and illnesses as well as improve worker protections by engaging labor organizations, employer groups, individual employers and others in formal, cooperative relationships with OSHA to carry out the purposes of the Occupational Safety and Health Act.
The U.S. Senate has passed, by a single-vote margin, a joint resolution previously passed by the U.S. House that “disapproves” President Barack Obama’s 2014 Executive Order 13673: Fair Pay and Safe Workplaces, often called the “blacklisting” executive order. (For more on Executive Order 13673, see our articles, ‘Blacklisting’ Rules for Government Contractors Proposed by Federal Agencies under Executive Order and DOL and FAR Council Publish Final ‘Fair Pay and Safe Workplaces’ Rules for Government Contractors.)
An appellate court one level below the Supreme Court of the United States, and highly respected in the field of administrative law, recently held that the Occupational Safety and Health Administration’s (OSHA) interpretation of a statute of limitations is wrong, contrary to its “clear” language, “unreasonable,” productive of “absurd” consequences, and that it would be “madness” for OSHA to attempt to avoid the court’s ruling by amending its regulations. So what does OSHA do?
The Occupational and Safety and Health Administration released a preliminary list of the 10 most frequently cited safety and health violations for 2016, compiled from about 32,000 inspections of workplaces by federal OSHA staff.
OSHA Penalties Keep Changing, But the OSH Act Remains the Same: Were OSHA’s Recent Penalty Increases Valid?
Federal OSHA increased its maximum penalties last summer for the first time since 1990. The increase occurred pursuant to a new law requiring federal agencies to adjust penalties to account for inflation. However, the OSH Act, which specifically provides the maximum penalties Fed-OSHA can administer, was not amended. It still prevents Fed-OSHA from issuing penalties higher than the levels set in 1990.
There are new developments related to OSHA’s Electronic Recordkeeping Rule and the Volks Rule. As a reminder, the Electronic Recordkeeping Rule requires certain employers to electronically file their OSHA recordkeeping data with OSHA as well as heightens scrutiny related to both drug testing and safety incentive programs. The Volks Rule essentially reversed the decision held in AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012) (the “Volks Decision”) that limited OSHA’s ability to cite recordkeeping violations to six months.
Republican administrations tend to put more emphasis on helping employers comply with Occupational Safety and Health Administration requirements than on punitive enforcement actions. President Trump is familiar with OSHA because contractors on his construction sites have had run-ins with the agency, so it is even more likely that his Department of Labor will prioritize educational and voluntary programs over high-profile fines and litigation.
Proposed Midnight Rules Relief Act May Put An End To OSHA Recordkeeping Rule - Onerous Workplace Safety Rules Among Many That Could Face The Axe
Earlier this year, the U.S. House of Representatives voted to approve the Midnight Rules Relief Act by a vote of 238-184. This Republican-backed measure would amend the Congressional Review Act and allow Congress to overturn, en masse, any federal regulation enacted during the final year of a president’s term. If approved by the Senate and signed into law, the Act could have broad implications for any regulation passed in 2016, including, among many other workplace law regulations, the recordkeeping rule issued by the Occupational Safety and Health Administration (OSHA) and its related anti-retaliation provisions.
In most instances, an OSHA inspector will arrive at your door unannounced. Among other things, the inspector will present his or her credentials, say why he or she is there, and then ask for your consent to conduct an inspection. The actual inspection and a closing conference will follow, along with the issuance of any citations within six months of any violations.
The 300A log summarizes any work-related injuries and illnesses employees experienced during 2016, and it must be completed and posted even if no injuries or illnesses occurred during the year.
Covered employers must post the Occupational Safety and Health Administration’s (OSHA) Form 300A between February 1 and April 30, 2017. Form 300A is a summary of the total number of job-related injuries and illnesses that occurred during a single year at each workplace. The notice should be posted in a conspicuous location where notices to employees are usually posted. Employers will want to make sure that the posting is not changed, vandalized, or covered by other material.
The Occupational Safety and Health Administration has issued a final rule “to prevent chronic beryllium disease and lung cancer” in workers by limiting their exposure to beryllium and beryllium compounds. Beryllium and beryllium compounds are used in the aerospace, shipyard, electronics, energy, telecommunication, medical, and defense industries.
On January 23, the Mine Safety and Health Administration (MSHA) issued its Final Rule for Examinations of Working Places in Metal and Nonmetal Mines. The final rule amends the existing workplace examinations standard and contains significant and highly burdensome requirements for mine operators. Since its publication in the Federal Register, questions have arisen as to when the Final Rule will become effective due to a recent White House memorandum.
On January 17, 2017, the outgoing administration left one last gift for the Process Safety Management (PSM) community: a new national emphasis inspection program. As the compliance directive notes, “Any violation of the PSM standard is a condition that is likely to cause death or serious physical harm.” Given the Occupational Safety and Health Administration’s (OSHA) recent enforcement requiring flawless piping and instrumentation diagrams, as well as operating procedures, under the guise that documents must be “accurate,” even typographical errors can result in serious violations with penalties reaching $12,675 per violation.
The Occupational Safety and Health Administration has argued in a new “white paper” that employers should include worker safety as part of their “sustainability” calculations.
Effective January 1, 2017, OSHA requires that establishments with 20 to 249 employees in certain high-risk industries, including construction, manufacturing and building material and supplies dealers, submit their injury and illness summary (Form 300A) data to it electronically. Their 2016 Form 300A must be submitted by July 1, 2017 and their 2017 Form 300A must be submitted by July 1, 2018. Establishments with 250 or more employees in industries covered by the record keeping regulation also must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300 and 301) by July 1, 2018.
Dr. David Michaels, the Assistant Secretary for OSHA, announced that today, January 10th, would be his last day with the agency. He will be returning to academia at George Washington University beginning January 17th. And, on this last day, he continued what has been a very aggressive regulatory agenda by announcing that he was accepting a coalition of unions’ petition for the creation of an OSHA standard related to workplace violence in healthcare.
2017 Practical Advice Series, Part II: The Tongue is an Evil Serpent and Email and Tweets are Even Worse
Even a fool who keeps silent is considered wise; when he closes his lips, he is deemed intelligent. Proverbs 17:28
Richard Marx Won’t Be Right Here Waiting To Save You From Workplace Intruders: Lessons To Make Sure Your Workers Are Prepared
Before last week, late 1980s pop singer Richard Marx had not made news headlines since, well, the late 1980s. Over 20 years ago, Marx was very well known for his smooth tenor vocals and flowing mane of hair. He hit his peak when his popular song “Right Here Waiting” – the video for which has been viewed over 110 million times on YouTube – made it to number one on the Billboard Top 100 in 1989. Marx was not, however, widely viewed as someone who could teach lessons about best practices in workplace safety (although he did have a 1992 hit called “Hazard”).
With the exception of Immigration enforcement, I doubt that we will see as vigorous an increase in new employment law requirements and enforcement under the Trump Administration as under President Obama’s tenure. Therefore, I’m returning to the practical day to day subjects which continue to generate employer legal and safety claims or to increase profitability and success … depending on whether one in fact utilizes not-so-common sense.
I enjoy December’s “End of the Year” and “Best of the Year” Lists, especially for books, movies, beer and wine. Of course we also see the annual “Worst of the Year” lists, and as a defense-oriented attorney, I’m always fascinated by the annual “Judicial Hellholes” List. This fine document is prepared by the American Tort Reform Association (ATRA), and while the group is cheerfully partisan, one can’t dispute their evaluation of the most litigious and some would say, most outrageous venues in which to be sued.
On October 31, 2016, a $1 million dollar judgment against BNSF Railway Co. evaporated when the U.S. Court of Appeals for the Seventh Circuit set groundbreaking precedent under the Federal Railroad Safety Act (FRSA) and vindicated BNSF. The jury had awarded Michael Koziara, the plaintiff in the case, a total of $425,724.64, which included $125,000 in punitive damages. In addition, the court had awarded approximately $565,000 in attorneys’ fees, costs, and pre- and post-judgment interest. The Seventh Circuit reversed the judgment of the U.S. District Court in the Western District of Wisconsin with instructions to dismiss the case based on errors in jury instructions. Koziara v. BNSF Railway Co., No. 16-1577 (October 31, 2016). The Court of Appeals denied rehearing en banc on December 1, 2016.
In the face of mounting evidence of the widespread extent of workplace violence in the healthcare and social assistance sector, OSHA announced in the Federal Register on December 7th, 2016, that it is assessing the need for “a standard aimed at preventing workplace violence in healthcare and social assistance workplaces perpetrated by patients or clients.”
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.
On November 17, 2016, OSHA issued a final rule revising and updating its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The final rule includes revised and new provisions addressing fixed ladders, rope descent systems, and fall protection systems. The rule also establishes requirements on the design, performance and use of personal fall protection systems in general industry. In addition, employers must now train employees on identifying and minimizing fall hazards, using fall protection systems and maintaining, inspecting and storing fall protection equipment.
Executive Summary: A federal judge on November 28 refused to block implementation of the anti-retaliation provisions of OSHA’s recordkeeping and reporting rule scheduled to take effect December 1, 2016. The business groups challenging the rule (collectively TEXO) argued that it would unlawfully prohibit or limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs. The court held that the rule’s challengers failed to show that irreparable harm would result or that the public interest would be disserved if the court did not grant an injunction. See TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV 1998-L (N.D. Tex. Nov. 28, 2016).
The next version of Occupational Safety and Health Administration’s annual voluntary guidance cataloging measures for improving safety and health in the workplace may include insights from the public. For the first time ever, OSHA wants assistance from the public to identify the “leading indicators.”
Court Declines to Enjoin OSHA Drug Testing and Safety Incentives Under the Electronic Recordkeeping Reporting Rule
On a very limited legal basis, a federal district court has declined to enjoin the U.S. Occupational Safety and Health Administration from enforcing portions of its new recordkeeping rule related to potentially retaliatory post-accident drug testing and safety incentive programs. Published on May 12, 2016, the OSHA rule expressly prohibits retaliation for reporting a work-related injury or illness, requires various employers to submit injury and illness data electronically, and changes employer obligations for ensuring employees report all work-related injuries and illnesses.1
On November 28, 2016, a federal district judge rejected several industry groups’ attempt to halt certain aspects of the Occupational Safety and Health Administration’s (OSHA) Improve Tracking of Workplace Injuries and Illnesses final rule. In particular, the groups were targeting the new “anti-retaliation” provisions under 29 C.F.R. Sections 1904.35 and 1904.36, which would effectively prohibit employers from utilizing certain safety incentive programs and mandatory post-accident drug testing policies.
The election of Donald Trump surprised some Americans. In the days since his victory, our firm’s lawyers have fielded numerous questions from employers regarding what changes to workplace law they can expect under the Trump Administration.
OSHA first released its “Guidelines for Safety and Health Programs” 30 years ago. Since then, the workplace has changed so much that it can, in some ways, appear unrecognizable from days gone by. OSHA has therefore recently updated its guidelines to address both these changes and the accompanying safety and health issues that are now part of the modern workplace.
In its first comprehensive changes in 30 years, the Occupational Safety and Health Administration has updated its Guidelines for Safety and Health Programs to reflect “changes in the economy, workplaces, and evolving safety and health issues.”
On October 19, 2016, OSHA published a memo advising the new provisions of Section 1904.35, which require employers to set up reasonable procedures for reporting workplace injuries/illnesses and prohibit employers from retaliating against employees who reported work place injuries/illnesses. The memo specifically addressed discipline, drug and alcohol testing and incentive programs and how they may be interpreted by OSHA under this new law.
OSHA Recommended Transgender Employees Use Restrooms Consistent With Gender Identity – Are You, Your Employees, and Your Customers Ready to Accept This?
More and more, the issue of transgender rights is coming into the national spotlight. Employers are being presented with questions about how to lawfully accommodate transgender employees in the workplace. To date, these questions have not had simple legal answers nor are the answers readily accepted by all.
While the bulk of our attention has been focused on the troubling Presidential race, employers would be well advised to more closely watch the US Senate races. As I type, the current Senate of 41 Republicans and 46 Democrats could shift to a Democrat body after the election. Nevada, Missouri, Indiana, Pennsylvania, New Hampshire and North Carolina Senate races are classified by the Wall Street Journal as “too close to call.” (Graphic below from WSJ, only better at WSJ!
Dr. Michaels, an epidemiologist and professor at George Washington University School of Public Health, was appointed as the 12th Assistant Secretary of Labor for Occupational Safety and Health in December, 2009. Having served seven years with OSHA, Dr. Michaels is the longest serving Assistant Secretary.
The Occupational Safety and Health Administration (OSHA) recently released a memorandum explaining “in more detail” two provisions added to the recordkeeping regulation: Section 1904.35(b)(1)(i) requiring “employers to have a reasonable procedure for employees to report work-related injuries and illnesses”; and Section 1904.35(b)(1)(iv) prohibiting retaliation for reporting work-related injuries and illnesses.
OSHA recently released its preliminary annual list of the top ten safety and health violations cited for fiscal year 2016. While not anticipated to change much, a more final list will be completed closer to the end of 2016.
On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In conjunction with the memorandum, OSHA also provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios on its website.
The Occupational Safety and Health Administration’s (OSHA) Lockout Standard (29 C.F.R. 1910.147) applies today only to “unexpected” startups of machinery. For example, the standard does not apply if alarms give employees such clearly audible and timely warning that any startup would be expected (consider the warnings given at airport baggage carousels). The word “unexpected” also means that the standard would not apply if, for example, a machine were so small and its one switch were so located that any employee servicing it would know of any restart attempt.
The Occupation Safety and Health Administration (OSHA) again delayed enforcement of the anti-retaliation provisions included in the revised recordkeeping regulation, 29 CFR Part 1904, until December 1, 2016. OSHA delayed enforcement at the request of Northern District of Texas Judge Sam Lindsay. Judge Lindsay is considering the complaint and motion for preliminary injunction filed by several industry groups challenging the anti-retaliation provisions to the extent that OSHA seeks to limit routine post-accident drug testing and incident-based safety incentive and recognition plans.
Last week, OSHA’s proposed rule for Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) in General Industry (Subpart D and Subpart I) cleared the White House Office of Management and Budget (OMB), signaling the forthcoming final publication by OSHA.
"MAKE OSHA GREAT AGAIN!" What the Occupational Safety & Health Administration Might Look Like Under a President Trump
The general election is less than five weeks away. On November 8, 2016 - in conclusion of perhaps the most entertaining election cycle in U.S. history - American voters will finally determine if Hillary Clinton or Donald Trump will succeed Barack Obama as our nation’s President.
The Occupational Safety and Health Administration failed to go through the proper rulemaking process before mandating retailers to implement new stricter storage standards for anhydrous ammonia fertilizer, the U.S. Court of Appeals for the D.C. Circuit has ruled. Agricultural Retailers Association and the Fertilizer Institute v. OSHA, No. 15-1326 (D.C. Cir. Sept. 23, 2016).
In July 2015, OSHA issued a Directive on the revised Hazard Communication Standard (“HCS”), Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079. In that Directive OSHA provided guidance on the interplay between labeling under the HCS and other federal agencies, specifically the Department of Transportation (“DOT”).
The Occupational Safety and Health Administration overstepped its authority in expanding union representation at “walk-arounds” in non-union workplaces, the National Federation of Independent Business has alleged in a lawsuit against the agency filed in Texas. Nat’l Fed’n of Indep. Bus. v. Dougherty, No. 3:16-cv-02568 (N.D. Tex. Sept. 8, 2016).
The Occupational Safety and Health Administration is considering updating its safety standards covering falls in shipbuilding, ship repair, shipbreaking, and other shipyard-related employment and has issued a Request for Information. Comments and materials must be submitted by December 7, 2016.
Dr. David Michaels, Assistant Secretary of Labor for the Occupational Safety and Health Administration, issued a new report, discussing the results of the first year of the severe injury reporting requirements. The report concludes that the severe injury reporting program has been a big success in improving safety and health in workplaces across the United States, and in helping OSHA focus its resources where most needed. OSHA recognizes, however, that more still needs to be done to reduce the number of in-patient hospitalizations and amputations in today’s work places and hold employer’s accountable for such severe injuries.
OSHA Joins the SEC in Attacking Confidentiality and Other Provisions in Private Settlement Agreements
On September 15, 2016, the federal Occupational Safety and Health Administration (OSHA) released new policy guidelines for its review of private settlement agreements presented to the agency for approval in whistleblowing actions.1 OSHA issued these guidelines based on its concern that certain confidentiality and other provisions in settlement agreements may unlawfully restrict or discourage employee activity that the government would like to protect and promote.
Using a crane to move headstones and small monuments is “generally” not defined as construction, but the crane operator is still responsible for stringent worker-safety rules regarding crane operations, the Occupational Safety and Health Administration has advised in response to a question from an Arkansas granite and marble cemetery monument delivery company.
Earlier this year, the Occupational Safety and Health Administration (OSHA) published its long-awaited final rule (https://www.gpo.gov/fdsys/pkg/FR-2016-03-25/pdf/2016-04800.pdf) setting new workplace permissible exposure limits (PELs) for respirable crystalline silica. The new rule includes one standard for the construction industry and a separate standard for general industry and maritime employment. While the rule took effect on June 23, 2016, employers have some time to adjust. Compliance dates for different requirements are staggered, with a June 23, 2017 deadline for employers in the construction industry, and a June 23, 2018 deadline for those in general industry and maritime operations.
On September 8, the National Federation of Independent Business (NFIB) filed a federal court complaint in Dallas, seeking to strike down what has become known as the U.S. Occupational Safety and Health Administration’s (OSHA) “union walk around rule.” The lawsuit seeks a declaratory judgment that OSHA acted “arbitrarily and capriciously” in issuing the rule and did not afford the public an opportunity to comment on the rule before its promulgation. The NFIB also seeks to enjoin OSHA from enforcing the rule.
How Would Coach Nick Saban Handle an OSHA Inspection? Lessons for Employers from the Crimson Tide’s Championship Football Coach
September has arrived. That can only mean one thing: it’s time for college football!
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 workplace safety agencies raised objections to adopting federal Occupational Safety and Health Administration’s penalty increases in letters to the Department of Labor on OSHA’s interim final rule, Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustment. State agencies with OSHA-approved job safety and health programs maintain that OSHA exceeded its authority in imposing the new fine structure on State Plans.
As many employers know, OSHA has attempted to gain unprecedented power in the inspection process. Indeed, as this article is written, battles are being fought in federal court relative to OSHA’s authority and power in the inspection and rulemaking process.
Most state workplace safety programs did not meet performance goals, an annual report by the federal Occupational Safety and Health Administration studying 21 state programs in fiscal year 2015 has found. This is largely because of high staff turnover and insufficient federal funding in many states, OSHA said.
Noise Complaints Don’t Fall on Deaf Ears: OSHA Sets Out to End Workplace Noise Exposure and Related Hearing Loss
Recently, OSHA, the Mine Safety and Health Administration and the National Institute for Occupational Safety and Health teamed up to compel inventors to develop a solution to workplace noise exposure and corollary hearing loss. The trifecta endeavors to ameliorate the risk of hearing loss that 22 million workers face every year from workplace noise hazards.
The Occupational Safety and Health Administration has issued “interim guidance” to provide employers and workers information and advice on preventing occupational exposure to the mosquito-borne Zika virus.
Noise Complaints Don’t Fall on Deaf Ears: OSHA Sets Out to End Workplace Noise Exposure and Related Hearing Loss
Recently, OSHA, the Mine Safety and Health Administration and the National Institute for Occupational Safety and Health teamed up to compel inventors to develop a solution to workplace noise exposure and corollary hearing loss. The trifecta endeavors to ameliorate the risk of hearing loss that 22 million workers face every year from workplace noise hazards.
Concerns employers may use temporary workers as a means to fill hazardous jobs and skirt compliance with OSHA regulations, has led to OSHA holding staffing agencies jointly responsible for safety violations when temporary workers are exposed to unsafe conditions. While the extent of staffing agency responsibilities are fact-specific—based upon the applicable regulations for the particular job and activity—what OSHA has made clear is that staffing agencies and employers are jointly responsible for ensuring OSHA compliance and that temporary workers have a safe place to work.
That’s Tainted! What Employers Should Know About OSHA’s Enforcement of the Food Safety Modernization Act
Lost in all the landscape-altering changes made by OSHA during the last 18 months was its adoption of enforcement procedures for handling retaliation claims under the FDA’s Food Safety Modernization Act (“FSMA”). Employers across many industries should take notice of the far-reaching provisions of the FSMA. It not only applies to food processing employers, but any entity that is involved with the transportation or handling of food products, including trucking companies, distribution centers, warehouses, and cold storage.
The Occupational Health and Safety Administration’s new campaign — “Water. Rest. Shade.” — alerts employers and workers to the hazards of working in high summer temperatures and highlights OSHA’s educational and training resources, including a free app, to help lower the risk of heat-related illnesses in the workplace.
In an April 2016 Interpretation Letter, which was recently made publically available, OSHA responded to a question about medical treatment beyond first aid for recordkeeping purposes. The incident in question involved an employee who experienced wrist pain after working at a computer. Before being seen at the occupational health clinic, the employee bought and used a rigid wrist brace. The doctor said that the brace was not necessary but recommended that the employee continue to wear it if it was relieving the pain. The requester wanted to know whether this constituted medical treatment.
Earlier this year, the Occupational Safety and Health Administration (OSHA) signaled an intention to take employers to task for maintaining policies that required employees to immediately report workplace injuries and accidents or face discipline. OSHA considers such policies to be retaliatory and a violation of section 11(c) of the Occupational Safety and Health (OSH) Act. In addition, OSHA will likely also consider such policies to be a violation of the new anti-retaliation provisions under its recently published recordkeeping rule.
The Occupational Safety and Health Administration (OSHA) announced on July 13, 2016, that the anti-retaliation provisions included in the revised recordkeeping regulation, 29 CFR Part 1904, will not be enforced until November 1, 2016. The provisions were originally scheduled to go into effect on August 10, 2016.
OSHA has issued a new Fact Sheet for Combustible Dust Explosion Hazards. See link: https://www.osha.gov/Publications/OSHA3878.pdf
The Occupational Safety and Health Administration (OSHA) is the government agency tasked with setting and enforcing workplace safety standards. As part of the Department of Labor, OSHA has recently seen a great deal of regulatory activity. WPI Co-Chair Ilyse Schuman interviews Ben Huggett, a shareholder at Littler’ Philadelphia office, and discusses the developments at OSHA and how they impact almost all areas of employment.
The two-year bipartisan budget President Obama signed on November 2, 2015, required OSHA to raise its citation penalties for the first time in 25 years. Since 1990, OSHA has been one of only three federal agencies that were specifically exempted from a law that required federal agencies to raise their fines to keep pace with inflation. A section of the budget bill – entitled the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 – eliminates this exemption for OSHA. This provision will be implemented through an interim final rule scheduled for publication in the July 1, 2016 edition of the Federal Register. OSHA will assess the new penalty amounts starting August 1, 2016.
On June 30, 2016, the U.S. Department of Labor (DOL) announced its interim final rule on Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments. The rule was formally published in the Federal Register on July 1.
A New York man and two construction companies he owns have been indicted on manslaughter and other charges in the death of an employee who plunged six stories to his death after allegedly being directed to perform work without fall protection.
The Occupational Safety and Health Administration has revved up rulemaking and workplace inspection initiatives, changing the enforcement landscape more during the past two years than we saw in the preceding 30. Employers, general counsels and human resource departments should steel themselves for new complexity in dealing with OSHA and Occupational Safety and Health Act compliance. Those who do not comply may not only face significant frustration, but also considerable economic liability.
It has been close to 100° in many southern states and even worse in the West. The Union of Concerned Scientists has warned of a “dangerous heat wave and steps to take. Perhaps I should not be surprised that we have heard of an unusual number of employee deaths where heat was probably not a factor, but the circumstances required determining whether workplace heat contributed to the event. Similarly, was an employee’s illness after work related to the heat and was the hospitalization for treatment or for “observation.” We have also seen a large number of OSHA inspections examining heat outside on construction sites or in manufacturers and foundries. Regardless of these legal issues, one fact is clear … we have to purposefully protect employees during this season.
OSHA officials have been busy as the weather heats up and spring turned to summer. On May 20, 2016, OSHA cited BC Stucco and Stone, a construction company in Darby, Pennsylvania, for one serious violation and three willful violations. The investigation dated back to November 25, 2015 when an OSHA compliance officer observed an employee working eighteen feet above ground on a scaffold without fall protection. The proposed penalties are $93,000. BS Stucco had also been previously cited on May 2, 2016 at their Philadelphia location.
Employers Should Evaluate Safety Incentive Programs and Drug Testing Policies in Light of New OSHA Rule
Executive Summary: The Occupational Safety and Health Administration (OSHA) recently published a final rule revising its recordkeeping and reporting regulation to specifically state that employer policies for reporting workplace injuries and illnesses must be reasonable and to specifically prohibit retaliation against employees who report a workplace injury or illness. Under the rule, procedures that deter or discourage employee reporting are not reasonable. The new rule has created concern among employers regarding the legality of disciplinary programs, mandatory post-incident drug testing, and employee safety incentive plans.
With the arrival of summer, the Occupational Safety and Health Administration has launched initiatives to alert employers and workers to heat and lightning hazards and the steps to take to prevent injury or illness from them.
The Occupational Safety and Health Administration has identified seven proposals the agency hopes to release as final rules before the end of the year, while the Mine Safety and Health Administration, its sister agency within the Department of Labor, plans to issue two final rules in 2016.
It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. On May 18, 2016 the spring semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
The Occupational Safety and Health Administration (OSHA) issued its final rule regarding injury and illness data collection and recordkeeping. OSHA's stated intent is to "better inform workers, employers, the public and OSHA about workplace hazards." Although employers already must keep a record of injuries and illnesses, this information is not available publicly. OSHA would access the information as part of an inspection or under a written request. Under the new rule, employers in high-hazard industries will send OSHA injury and illness data for posting on the agency's website. OSHA will remove personally identifiable information associated with the data before it is publicly accessible.
The OSHA Technical Manual (OTM) provides information about workplace hazards and controls to OSHA’s Compliance Safety and Health Officers. The OTM is based upon currently available research, publications, OSHA Standards, and consensus standards. OSHA is adding a new chapter on fall protection to its OTM. Chapter 4, entitled “Fall Protection in Construction,” provides technical information about fall hazards and protection methods. The information is intended to help prepare OSHA compliance officers to conduct inspections and investigations.
The Occupational Safety and Health Administration has released “Improve Tracking of Workplace Injuries and Illnesses,” its long-anticipated final rule revising its Recording and Reporting Occupational Injuries and Illnesses regulation.
What OSHA’s Electronic Recordkeeping Rule Means For Workplace Post-Accident Drug and Alcohol Testing
Today, OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register.
Federal government agencies have released interim guidance to provide employers and workers information and advice on preventing occupational exposure to the Zika virus.
In the first revision in 30 years of its criteria document on workers’ exposure to heat and hot environments, the National Institute for Occupational Safety and Health of the Centers for Disease Control and Prevention removed ceiling limit recommendations for acclimatized and un-acclimated workers, but has left untouched its recommended exposure and alert limits.
On April 18, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it has issued procedural rules for enforcement of whistleblower complaints alleging violations of the Federal Food, Drug, and Cosmetic Act (FDCA). The new final rule, set out in Section 402 of the Food Safety Modernization Act, protects employees who have disclosed information of a possible violation of the FDCA.
The Occupational Safety and Health Administration finds that its new severe injury reporting program is a success. It believes a large number of severe injuries still are not being reported by employers. The agency has warned that tough consequences face employers who choose to ignore the reporting requirements.
On March 4, 2016, the Occupational Safety and Health Administration (OSHA) issued new procedures for enforcing revised injury and illness reporting requirements in 29 C.F.R. § 1904.39. Many of the 2014 interim procedures remain unchanged, but now employers will face a minimum penalty of $5,000 for failing to report. The new procedures also include a so-called “safe harbor” provision that OSHA claims will prevent the agency from using root cause reports that employers submit as the basis for citations. As discussed further below, the protection in the “safe harbor” is a bit illusory.
The Occupational Safety and Health Administration (OSHA) has released its final rule on occupational exposure to respirable crystalline silica.
The Occupational Safety and Health Administration has launched emphasis programs in three Midwestern states in an effort to reduce injuries and illnesses that government data show have affected 7.5 percent of employees in the meat processing industry there.
Rushing to put final rules in place before the current Administration’s term ends, on March 17, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule for implementing the whistleblower protections under Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (CFPA). The day before, OSHA published its interim final rule and request for comments on its proposed procedures for handling whistleblower retaliation complaints under Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), applicable to automotive industry manufacturers, suppliers and dealers. Both sets of rules establish procedures and timeframes for OSHA’s handling of whistleblower retaliation complaints under each statute, as well as identify the available legal and equitable remedies for whistleblowers who prevail.
On March 24, 2016, the Occupational Safety and Health Administration (OSHA) announced its final rule on occupational exposure to respirable crystalline silica. The rule was published in the Federal Register on March 25, 2016.
Stepped-Up DOJ Enforcement Signals Intent to Increase Criminal Prosecution of Workplace Safety Violations
Companies who have in the past considered OSHA penalties as a mere cost of doing business and not a significant deterrent should rethink their position and revamp their compliance programs based on recent steps taken by the Department of Justice (DOJ) which heighten the risk of non-compliance.
As OSHA gears up for its yearly National Safety Stand Down to prevent falls in the construction industry, one can expect there to be an increase in available fall related information and resources. With each year’s initiative, OSHA provides substantial guidance for both employers and employees regarding safe practices and fall prevention. While one of the best places to find information on fall safety and OSHA compliance is through OSHA itself, there are many other resources that are just as accessible and may be of some utility.
Although a defective piece of mobile equipment, which was restored to service, improperly moved despite the inactivation of the equipment, it did so too slowly to make an injury reasonably likely, an administrative law judge (ALJ) has ruled.
Training and education were highlighted as key concerns of participants at a February 11 workshop called by the Occupational Safety and Health Administration and the Federal Communications Commission to discuss proposed guidance for best safety practices for mobile phone and broadcast tower workers and to provide an update on certification and apprentice programs for those employees.
Traffic accidents are the number one killer of employees in the United States. There is a vehicle crash every 2.5 seconds, a vehicle-related injury every 19 seconds, and a vehicle-related fatality every 11 minutes. According to the most recent data available, more than 32,000 people died and an additional 2.3 million people were injured in traffic accidents in 2014 alone.
What to Expect from OSHA in 2016: Michaels Discusses Hazard Alerts, Silica Rule, Reporting, and Other Priorities
On February 11, 2016, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health and the head of the Occupational Safety & Health Administration (OSHA), spoke to 170 members of the oil and gas well servicing industry at the Association of Energy Service Companies’ (AESC) Winter Meeting in Horseshoe Bay, Texas, about what the public can expect to see from OSHA in 2016.
Manufacturing industries with elevated injury and illness rates in Kansas, Missouri, and Nebraska face an increased probability of getting a comprehensive safety and health inspection as a result of an initiative launched by the Occupational Safety and Health Administration on January 25.
A judge has thrown out a citation against a Tennessee rock producer for inadequate illumination because the mine safety inspector wrote the alleged offense during a daylight inspection and never established what miners were able to see in the dark. Sec’y of Labor, MSHA v. Buzzi Unicem USA, FMSHRC No. SE 2015-206-M (Jan. 8, 2016).
The Metal/Non-Metal (M/NM) sector of the U.S. mining industry achieved two first-ever milestones last year, not only by working without a fatality for 133 consecutive days — about 4.5 months — but also by doing so during October, a month which had never before been fatality-free in the M/NM sector.
The Industrial Truck Association (ITA) has renewed an alliance with the Occupational Safety and Health Administration that is designed to reduce workplace incidents, such as tip-overs and struck by hazards, associated with powered industrial trucks.
The Mine Safety and Health Administration may continue phasing-in its new coal dust rules, a three-judge panel of the Eleventh Circuit Court of Appeals has decided, relying on what it called a “holistic interpretation” of the Mine Act to uphold MSHA’s new rules. National Mining Association, et al. v. Sec’y of Labor, et al., No. 14-11942 (Jan. 25, 2016). The rule expands sampling requirements, changes sampling methods and tools, lowers permissible exposure limits, and requires immediate corrective actions by mine operators.
A divided National Labor Relations Board (NLRB) has ruled that a memorandum of understanding (MOU) between NLRB and the Occupational Safety and Health Administration over OSHA-related issues does not require NLRB’s General Counsel to consult with OSHA before issuing investigative subpoenas.
Finding evidence presented by a mine inspector to be “too vague and conclusory,” an Administrative Law Judge (ALJ) has vacated two citations against a Tennessee stone producer over allegedly excessive slack in the steering mechanisms on two haul trucks.
The Occupational Safety and Health Administration may have thrown in the towel on issuing a general industry regulation for combustible dust before the end of the Obama Administration in January 2017.
Like death and taxes, the Occupational Safety and Health Administration (OSHA) can always be counted on to ratchet up enforcement efforts against employers each year. 2016 appears to be no different. The year begins with the agency continuing to sharpen its emphasis on inspecting and citing employers who violate its recordkeeping standard. This takes on greater importance because the reporting requirement changes that went into effect last year had a significant impact on the businesses that OSHA will be inspecting.
As is often the case, the year’s end signals an opportunity to look back and reflect on significant developments that have occurred, to turn one’s attention forward – and to think ahead. This annual focus can relate to almost anything, including politics, entertainment, your health, your family, and yes – even the Occupational Safety and Health Administration (OSHA).
On January 1, 2015, the new injury and illness reporting requirements went into effect requiring employers to report to OSHA fatalities as a result of a work-related incident within 8 hours, and in-patient hospitalizations, amputations, or loss of an eye as a result of a work-related incident within 24 hours.
OSHA and FAA Agree to Increased Cooperation and Information Sharing to Protect Aviation Whistleblowers
The Occupational Safety and Health Administration and the Federal Aviation Administration have executed a memorandum of understanding (MOU) regarding the enforcement of the whistleblower provisions in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21) (49 U.S.C. § 42121), a law enacted in 2000 to improve air safety. According to the December 1, 2015, MOU, OSHA and the FAA concluded that administrative efficiencies and sound enforcement policies will be maximized by the agencies cooperating and exchanging information in a timely manner.
In a new enforcement effort involving the Occupational Safety and Health Administration and the Mine Safety and Health Administration, the federal government is launching an initiative aimed at putting more bite into penalties for alleged worker safety violations.
The Occupational Safety and Health Administration has sent its comprehensive rule governing worker exposure to respirable crystalline silica to the White House’s Office of Management and Budget for final review.
The United State Department of Justice and the United States Department of Labor have entered into a Memorandum of Understanding to provide for the coordination of matters pertaining to worker safety that could lead to criminal prosecution by the Department of Justice. Under the Memorandum, the U.S. Attorneys’ Offices will work with OSHA, Mine Safety (MSHA), and Wage and Hour Division to investigate and prosecute worker endangerment violations.
On December 17, 2015, the U.S. Departments of Justice (DOJ) and Labor (DOL) announced a new memorandum of understanding (MOU) to increase the frequency and effectiveness of criminal prosecutions of so-called worker endangerment statutes. The MOU transfers the prosecution of violations of some statutes – the Occupational Safety and Health (OSH) Act, the Mine Safety and Health (MSH) Act, and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) – from the DOJ Criminal Division’s Fraud Section to the DOJ’s Environment and Natural Resource Division’s Environmental Crimes Section. The memorandum says that the DOJ has trained “hundreds” of inspectors to recognize and document prosecutable offenses, and that it would be providing a designated Criminal Coordinator from the DOL to work with local U.S. district attorneys on prosecuting these crimes.
In 2010, the Occupational Safety and Health Administration (OSHA) let employers know there was a new sheriff in town. Now there will be a new police force as well. On December 17, 2015, the U.S. Department of Justice (DOJ) announced the expansion of the Worker Endangerment Initiative. In its announcement, the DOJ stated this was a new plan for prosecuting Occupational Safety and Health (OSH) Act and Federal Mine Safety and Health Act (Mine Act) crimes.
The last year of President Obama’s administration is fast approaching and 2016 looks to be a busy time for the Occupational Safety and Health Administration (OSHA), as it attempts to finalize significant rulemakings and guidance documents.
On December 9, 2015 OSHA held a public meeting at the Department of Labor in Washington, D.C. to discuss its revised Safety and Health Program Management Guidelines, which are voluntary guidelines for employers. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, led the meeting and sought input on the guidelines, which are currently in draft form. In addition to seeking general input and guidance from stakeholders, Dr. Michaels explained that OSHA was seeking answers to five key questions as well:
On December 9, 2015 OSHA held a public meeting at the Department of Labor in Washington, D.C. to discuss its revised Safety and Health Program Management Guidelines, which are voluntary guidelines for employers. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, led the meeting and sought input on the guidelines, which are currently in draft form.
As expected, the Occupational Safety and Health Administration is pleased that agency fines will be going up as much as 82 percent next year, even though the authorization from Congress in a budget bill was unexpected.
A regulation issued by the Federal Motor Carrier Safety Administration (FMCSA) will give commercial truck and bus drivers additional protection from being coerced into violating federal motor carrier safety regulations. The rule, which was proposed in May 2014, goes into effect on January 29, 2016.
The first six months of the new year will be busy ones for the Occupational Safety and Health Administration if rules included in the agency’s semi-annual regulatory agenda are released as scheduled.
The good news is that the Mine Safety and Health Administration has set forth a sparse regulatory agenda over the next six months, but the bad news is that agenda is topped by the agency’s intent to issue an unpopular final rule reforming its civil penalty procedures.
On December 1, 2015, the Occupational Safety and Health Administration (OSHA) launched a new web page in an effort to assist healthcare providers in curtailing violence in their workplaces. The page offers links to excellent resources on establishing a prevention program; workplace analysis and hazard identification; hazard prevention and control; safety and health training; and recordkeeping and program evaluation. The web page also includes information about legal requirements in various states and other valuable information for healthcare providers.
Issues with the the Mine Safety and Health Administration’s auditing of agency occupational injury and illness reporting mandates were exposed in a case in which an Administrative Law Judge threw out six citations because he said they failed to satisfy requirements of the regulation.
The Occupational Safety and Health Administration is asking for stakeholder input on revised safety and health management guidelines that employers may adopt voluntarily. The draft guidelines (https://www.osha.gov/shpmguidelines/SHPM_guidelines.pdf) update the agency’s 1989 safety and health program management guidelines.
The federal Occupational Safety and Health Administration has launched a webpage to provide employers and workers with strategies and resources for preventing workplace violence in healthcare settings.
OSHA launched a new Preventing Workplace Violence in Healthcare webpage this week. It contains several new tools and resources to help healthcare facilities combat workplace violence, including:
This podcast discusses OSHA’s updated guidelines on safety and health management programs, which have been put out for public comment
The federal government has taken steps to create additional safety compliance obligations for hospitality employers that will make it more likely you’ll be on the receiving end of an inspection in the near future. So what should you be worrying about?
A ruling that went against an Alabama underground coal operator has revealed sharp differences among members of the Federal Mine Safety and Health Review Commission over the interpretation of a safety standard dealing with imminent danger.
The Holiday Season is definitely upon us. Thanksgiving is only hours away. And while many of us make our last minute preparations for that big turkey dinner and the inevitable tryptophan-induced nap in front of the television, retailers are preparing themselves for one of the biggest shopping days of the year. Black Friday, almost a national holiday unto itself, draws some of the biggest shopping crowds of the year. Many retailers open their doors as early as Thanksgiving night and can still count on a maximum capacity crowd. With great sales, however, comes great responsibility, and OSHA wants to remind retailers about its duty to keep workers safe.
OSHA’s Latest Regulatory Agenda: Silica, Tree Care, Powered Industrial Trucks, Lockout/Tagout . . . and Much More
The U. S. Department of Labor (DOL) recently released its Fall 2015 Regulatory Agenda, its semi-annual status report of all regulatory actions underway or being contemplated by the DOL’s agencies. Included in the agenda were the Occupational Safety and Health Administration’s (OSHA) announcement that many of its standards nearing final rule status, such as Silica and Walking Working Surfaces, will have delayed deadlines. A few new surprises were included in the agenda, such as OSHA’s announcement to begin rulemaking on new standards for Tree Care, Powered Industrial Trucks, and Revocation of Obsolete Permissible Exposure Limits (PELs).
On November 20, 2015 the fall semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.
Citing a recent occupational death and serious accident, the Mine Safety and Health Administration said it will be enforcing safety standards over the next several months in the Metal/Non-Metal (M/NM) sector of mining to try to prevent accidents associated with confined spaces.
The preliminary schedule is out! Listen to this brief podcast to find out the estimated dates for OSHA’s final rules on crystalline silica and electronic recordkeeping.
In August, OSHA issued a revised version of its 2006 Directive on the Agency’s National Emphasis Program on Amputations that includes an updated list of 80 industries, primarily in manufacturing, that are targeted for inspection based on the high number of amputations that have occurred in those industries since 2006.
OSHA is being criticized for a recent interpretation letter clarifying who is responsible for recording illnesses and injuries in what the agency considers a “joint employer relationship” where supervision is shared between a host employer and a staffing agency. In deciding whether the host employer or the staffing agency is responsible for recording injuries and illnesses, the determining factors, according to OSHA’s requirements, are: (1) who supervises the employees on a day-to-day basis, and (2) what constitutes day-to-day supervision.
The quasi-judicial body overseeing enforcement actions by the Occupational Safety and Health Administration has handed OSHA another challenge to the agency’s nascent use of guidance documents as the basis for issuing citations, rather than relying on legally promulgated standards.
Get Ready for Monday-Morning Quarterbacking: OSHA Releases Compliance Guidance and Will Soon Finalize Electronic Recordkeeping Proposal
The Occupational Safety and Health Administration (OSHA) recently sent its proposal to amend the recordkeeping regulation, 29 CFR Part 1904, to the Office of Information and Regulatory Affairs (OIRA)—a necessary step in the process of finalizing the proposal. OSHA proposes requiring some employers to submit injury and illness data electronically. The proposal’s requirements depend upon the size of the establishment and break out as follows:
Recognizing that “an ounce of prevention is worth a pound of cure”, OSHA introduced last week its draft document, “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation” (available here). In the draft document, OSHA identifies these five key steps to creating an effective anti-retaliation program:
Healthcare employers be advised: OSHA is standing behind its updated workplace violence prevention guidance.
The Bureau of Labor Statistics (BLS) reports that in 2013, over 23,000 significant workplace injuries occurred due to assaults on the job– and that over 70 percent of these assaults were in healthcare and social service settings.
While big penalties levied by the federal Occupational Safety and Health Administration dominate the headlines, monetary fines imposed by health and safety agencies in states backed by OSHA can be significant, too.
Employers woke up to a surprise on November 3. That’s when we learned that the Federal Budget Agreement, which was quickly worked out behind closed doors and signed the day before, includes surprise provisions authorizing the Occupational Safety and Health Administration (OSHA) to increase penalties for the first time since 1990. To the surprise of almost all observers, the amount of the increase could be as much as 82%.
Last month, OSHA issued the latest update to its Field Operations Manual (FOM), the most recent update since a prior update in 2009. Significantly, OSHA’s FOM serves as a reference document for OSHA field personnel, providing enforcement policies and procedures relating to OSHA investigations and enforcement proceedings. This nearly 300-page manual contains 16 chapters addressing all aspects of the inspection and enforcement process, including, for example, chapters on “inspection procedures,” “violations,” “penalties and debt collection,” and “post-citation procedures and abatement verification.” In basic terms, the FOM shows much of what OSHA does, how it does it, and the respective rights of employers and OSHA. It serves as an instructional tool for both OSHA inspectors and employers alike. A complete copy of the 2015 updated Field Operations Manual can be found here.
President Obama signed the Bipartisan Budget Act of 2015 into law yesterday. The deal was negotiated quickly to avoid a default on the nation’s debt. Perhaps as a result, it includes a surprise for those with an interest in occupational safety and health: penalties imposed by the Occupational Safety and Health Administration (OSHA) are increasing. Title VII of the Budget Act—entitled the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015—requires mandatory upward adjustments of multiple civil penalties, including those proposed by OSHA. By no later than July 1, 2016, OSHA must issue an interim final rule containing a “catch up adjustment” to its civil penalties. Prior to issuing the interim final rule, OSHA is not required to follow notice-and-comment rulemaking provisions. The changes to the penalty amounts depend upon the cost-of-living adjustments established by the Consumer Price Index (CPI). The initial catch-up adjustment amount will be the percentage difference between the CPI in October 2015 and the CPI in October 1990, which was the year that OSHA penalties were last adjusted.
In view of Bureau of Labor Statistics (BLS) that poultry workers are twice as likely to suffer serious injuries and six times more likely to get sick on the job than other private sector workers, OSHA launched a new Regional Emphasis Program last week to reduce musculoskeletal disorders and ergonomic stressors affecting industry workers. The targeted states include Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, Oklahoma, and Texas – states that include some of the country’s largest poultry producers.
The Bipartisan Budget Act of 2015 contains a few surprises for employers covered by the OSH Act. To date, OSHA’s monetary penalties have not been subject to inflationary increases and, in fact, have been static since 1990. The proposed “Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015” which applies specifically to the OSH Act shakes up the status quo.
At a House subcommittee hearing on October 7, the head of the Occupational Safety and Health Administration, Dr. David Michaels, faced a grilling from Republican lawmakers over recently issued guidance memoranda for agency inspectors and examples of allegedly over-the-top enforcement actions.
MSHA Steps Up Metal/Non-Metal Mine Enforcement and Focuses on Workplace Examinations as Winter Approaches
Citing an increase in the number of fatalities at non-coal mines and the coming of cooler weather, the Mine Safety and Health Administration has announced a stepped-up enforcement to combat hazards and fatality risks.
On October 13, 2015, the Eighth Circuit Court of Appeals ruled in favor of Loren Cook in an 8–4 en banc decision in the carefully-watched machine guarding case of Perez v. Loren Cook Company, Eighth Circuit Court of Appeals, No. 13-1310 (October 13, 2015).
The Surface Transportation Board (STB) has denied a petition by a Texas metal producer that, if approved, would have forced the Union Pacific Railroad Co. (UP) to restore rail service at the producer’s plant in the midst of an employee lockout. The STB is an economic and adjudicatory body affiliated with the U.S. Department of Transportation and set up by Congress, in part, to resolve railroad rate and service disputes.
For the last several years, OSHA has expressed concerns regarding a host of employer practices it believes may result in underreporting of injuries and illnesses as depicted by several recent high-profile cases of alleged employer underreporting. Heightening OSHA’s interest is the position taken by some stakeholders that the annual injury and illness statistics published by the Bureau of Labor Statistics (BLS) underreports the true number of workplace injuries and illnesses due, in part, to employer incentive programs that discourage employees from reporting injuries and illnesses.
Since its inception, OSHA’s mission has been to protect workers and prevent work-related injuries, illnesses, and deaths. OSHA’s standards not only regulate workplace conditions, but also dictate the necessary training requirements employers must provide their employees. These training requirements further OSHA’s philosophy that in order for employees to stay safe, they must have the necessary skills and knowledge to perform their work. Employers are therefore charged with providing essential training as part of their safety programs.
As the Midlands recovers from the effects of widespread flooding, and as rain-swollen rivers reach the coastal portions of the South Carolina, Federal OSHA and SC OSHA have issued warnings about potential hazards encountered in connection with flooding and storm cleanup.
Triggered by an annual fatality rate among oil and gas exploration and production workers that for years was seven times the average for all U.S. workers, the National Institute for Occupational Safety and Health (NIOSH) has put together a draft strategic 10-year research plan to address the issue and is seeking comment from stakeholders on its contents.
Under an exception to the rulemaking process, federal agencies may use legally nonbinding guidance documents to interpret regulations.
OSHA Moves Closer to Finalizing "Improve Tracking of Workplace Injuries and Illnesses" (Electronic Recordkeeping) Rule
On October 5, 2015, OSHA submitted to the Office of Information and Regulatory Affairs (OIRA), a draft final rule for OSHA’s “Improve Tracking of Workplace Injuries and Illnesses.” OIRA is the division within the President’s Office of Management and Budget (OMB) that reviews draft and final standards and regulations. Under Executive Order, all significant regulatory actions require OIRA review before agency actions can be implemented. Generally, OIRA has up to 90 days to review a rule.
OSHA’s new reporting requirements began on January 1, 2015. Under these requirements, employers in federal OSHA jurisdiction are required to report to OSHA any work-related fatality or any work-related injury resulting in an employee being formally admitted to the hospital or any work-related amputation or loss of an eye. Since the implementation of these new requirements, OSHA estimates that it is receiving 200 to 250 reported incidents each week.
Mine regulators have no statutory authority to issue emergency “j” orders for immediately safeguarding people following a mine accident unless rescue and recovery is involved, the Federal Mine Safety and Health Review Commission has ruled. Section 103(j) of the Mine Act gives the Mine Safety and Health Administration authority to take appropriate action to assure personnel safety after an accident “where rescue and recovery work is necessary.”
The Occupational Safety and Health Administration has pledged to release a comprehensive final rule on crystalline silica by the end of the current Administration, in January 2017.
When the outdoor temperature tops 80 degrees Fahrenheit, the cool, air-conditioned comfort of a retail store may be a refuge for salespeople, but it is easy to forget that many other retail employees (including truck drivers, loaders, mechanics, janitors, maintenance personnel, cart attendants, and warehouse crews) may be feeling the heat in their workplaces.
Many more franchisors are likely to be judged to have a joint employer relationship with franchisees, subjecting them to enforcement by the Occupational Safety and Health Administration, under a draft policy reported to be circulating within the Department of Labor (DOL).
Coal haulage machines and scoops operating in working sections of underground coal mines will be required to be outfitted with proximity detection devices on a phased-in schedule if a proposed rule issued by the Mine Safety and Health Administration is finalized.
On August 26, 2015, a Virginia news reporter, Alison Parker, and a photojournalist, Adam Ward, were tragically shot down by a former colleague while conducting a live television broadcast in Moneta, Virginia. The gunman was later confirmed to be a former reporter at the victims’ news station, who was fired for disruptive conduct in 2013. Such acts of workplace violence are senseless and unpredictable, but there are ways to mitigate dangers still.
Around the same time the National Labor Relations Board (NLRB) issued its controversial and precedent-shattering decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, a franchise industry group revealed that the Occupational Safety and Health Administration (OSHA) is also targeting companies with franchising business models.
A judge’s decision to award lifetime workers’ compensation benefits to the widow of a Colorado oil and gas worker who died from toxic gases after opening a tank to measure oil levels could reverberate throughout the industry.
Parties to whistleblower disputes have a new way to resolve their differences using the Occupational Safety and Health Administration’s “early resolution” process.
In an interpretation letter dated June 1, 2015, OSHA answered the question “Under OSHA regulations 29 CFR 1926.95(a) who is responsible for the laundering of fire retarding clothing that is provided to employees?” The section states that protective equipment “shall be provided, used, and maintained in a sanitary and reliable condition” but does not elaborate on how this should be achieved.
Citing its 1994 legal decision holding that the “wholesale incorporation of a litigant’s brief is a questionable judicial practice,” the Federal Mine Safety and Health Review Commission has remanded for further analysis a judge’s determinations regarding enforcement actions taken against a Virginia coal operator and vacated others.
Noting that the manufacturing sector experienced more than twice the rate of amputations as that of the entire private sector in 2013, the Occupational Safety and Health Administration has updated its nine-year-old National Emphasis Program (NEP) on amputations.
In what the Occupational Safety and Health Administration described as a collaboration among government, industry, and organized labor, the safety agency has proposed a comprehensive rule to reduce exposure to beryllium among employees in general industry.
Facing a lawsuit by the mining industry over a an amended rule targeting “pattern” violators of the Mine Safety and Health Administration’s (MSHA’s) safety standards, the agency has announced the revised rule is “a law that now works.”
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.
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.
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’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.
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.
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
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.
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.
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).
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 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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.)
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.
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.
The following are highlights of the OSHA-related news for the week
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.
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.
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 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.
MSHA Tackles Rising Metal/Nonmetal Fatalities.
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:
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.
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.
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.
“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.
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.”
A number of fatal mine accidents occurred in the United States between January 1 and September 22, 2014.
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?
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.
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 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).
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 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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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 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.
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.
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.
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.
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.