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.
Articles Discussing General Topics Under OSHA.
OSHA Anti-Retaliation Rule Will Take Effect December 1
Executive Summary: A federal judge on November 28 refused to block implementation of the anti-retaliation provisions of OSHA’s recordkeeping and reporting rule scheduled to take effect December 1, 2016. The business groups challenging the rule (collectively TEXO) argued that it would unlawfully prohibit or limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs. The court held that the rule’s challengers failed to show that irreparable harm would result or that the public interest would be disserved if the court did not grant an injunction. See TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV 1998-L (N.D. Tex. Nov. 28, 2016).
OSHA Wants Public Assistance with Leading Indicators Guidance
The next version of Occupational Safety and Health Administration’s annual voluntary guidance cataloging measures for improving safety and health in the workplace may include insights from the public. For the first time ever, OSHA wants assistance from the public to identify the “leading indicators.”
Court Declines to Enjoin OSHA Drug Testing and Safety Incentives Under the Electronic Recordkeeping Reporting Rule
On a very limited legal basis, a federal district court has declined to enjoin the U.S. Occupational Safety and Health Administration from enforcing portions of its new recordkeeping rule related to potentially retaliatory post-accident drug testing and safety incentive programs. Published on May 12, 2016, the OSHA rule expressly prohibits retaliation for reporting a work-related injury or illness, requires various employers to submit injury and illness data electronically, and changes employer obligations for ensuring employees report all work-related injuries and illnesses.1
OSHA Updates Guidelines for Safety and Health Programs
OSHA first released its “Guidelines for Safety and Health Programs” 30 years ago. Since then, the workplace has changed so much that it can, in some ways, appear unrecognizable from days gone by. OSHA has therefore recently updated its guidelines to address both these changes and the accompanying safety and health issues that are now part of the modern workplace.
OSHA Issues New Guidelines for Safety and Health Programs
In its first comprehensive changes in 30 years, the Occupational Safety and Health Administration has updated its Guidelines for Safety and Health Programs to reflect “changes in the economy, workplaces, and evolving safety and health issues.”
OSHA Issues Guidance Memo on Incentive, Disciplinary, and Drug-Testing Programs
On October 19, 2016, OSHA published a memo advising the new provisions of Section 1904.35, which require employers to set up reasonable procedures for reporting workplace injuries/illnesses and prohibit employers from retaliating against employees who reported work place injuries/illnesses. The memo specifically addressed discipline, drug and alcohol testing and incentive programs and how they may be interpreted by OSHA under this new law.
Dr. Michaels To Leave OSHA in January
Dr. Michaels, an epidemiologist and professor at George Washington University School of Public Health, was appointed as the 12th Assistant Secretary of Labor for Occupational Safety and Health in December, 2009. Having served seven years with OSHA, Dr. Michaels is the longest serving Assistant Secretary.
OSHA’s 2016 Top Ten Violations
OSHA recently released its preliminary annual list of the top ten safety and health violations cited for fiscal year 2016. While not anticipated to change much, a more final list will be completed closer to the end of 2016.
OSHA Quietly Issues Guidance on Incentive Programs, Disciplinary Programs and Drug-Testing Programs
On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In conjunction with the memorandum, OSHA also provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios on its website.
OSHA’s Walking-Working Surfaces Final Rule Expected Soon
Last week, OSHA’s proposed rule for Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) in General Industry (Subpart D and Subpart I) cleared the White House Office of Management and Budget (OMB), signaling the forthcoming final publication by OSHA.
U.S. Court of Appeals Blocks New OSHA Fertilizer Rules Because of Improper Rulemaking
The Occupational Safety and Health Administration failed to go through the proper rulemaking process before mandating retailers to implement new stricter storage standards for anhydrous ammonia fertilizer, the U.S. Court of Appeals for the D.C. Circuit has ruled. Agricultural Retailers Association and the Fertilizer Institute v. OSHA, No. 15-1326 (D.C. Cir. Sept. 23, 2016).
OSHA and DOT Issue Joint Memorandum on Hazardous Chemicals
In July 2015, OSHA issued a Directive on the revised Hazard Communication Standard (“HCS”), Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079. In that Directive OSHA provided guidance on the interplay between labeling under the HCS and other federal agencies, specifically the Department of Transportation (“DOT”).
Lawsuit Filed Against OSHA on Walk-Arounds
The Occupational Safety and Health Administration overstepped its authority in expanding union representation at “walk-arounds” in non-union workplaces, the National Federation of Independent Business has alleged in a lawsuit against the agency filed in Texas. Nat’l Fed’n of Indep. Bus. v. Dougherty, No. 3:16-cv-02568 (N.D. Tex. Sept. 8, 2016).
OSHA Requests Information on Shipyard Safety Rules Covering Falls
The Occupational Safety and Health Administration is considering updating its safety standards covering falls in shipbuilding, ship repair, shipbreaking, and other shipyard-related employment and has issued a Request for Information. Comments and materials must be submitted by December 7, 2016.