OSHA Law Update

A Hazard Communication

OSHA’s Appropriations Efforts Signal Increased Enforcement and Higher Penalties in 2015

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President Obama’s recent budget proposal to Congress includes a proposed $592.1 million budget for OSHA this fiscal year — a 7 percent increase from fiscal 2015.  Although gaining approval of the proposal will surely be an uphill battle, which may be insurmountable in light of opposition from Republican lawmakers who oversee the appropriations process, the content of OSHA’s budget justification provides strong signals of its agenda for the coming year.

First, OSHA seeks to add 90 full-time positions to the agency for fiscal 2016.  Sixty of the new positions would be assigned to enforcement activities – forty of the new enforcement employees would be assigned to inspect the anticipated 50,000 – 75,000 new injury and hospitalization reports the agency expects to receive in fiscal 2016 in response to new reporting requirements that took effect on January 1, 2015 (the new reporting regime requires employers to report to OSHA within 24 hours any work-related hospital admissions, amputations, or eye losses).  The other twenty enforcement employees would be assigned to high hazard, complex inspections, such as inspections of worksites where the Process Safety Management standard applies or musculoskeletal disorders may be at issue.  OSHA states that without this increase in manpower, it will be forced to eliminate many planned inspections of high hazard workplaces, shifting its inspection priorities to responding to injury and hospitalization reports.

Next OSHA urged Congress to increase the statutory civil penalties for workplace health and safety violations.  The OSH Act is one of only four statutes not covered by the Federal Civil Penalties Inflation Adjustment Act, which includes a mechanism to increase fixed penalties to keep pace with inflation.  Without the benefit of this mechanism, OSHA has only been able to increase its civil monetary penalties once in the last forty years.  Although OSHA was not explicit in its budget justification, it appears the agency seeks funding for its efforts to increase the monetary civil penalties that the agency can impose in its citations in an effort to increase their deterrent effect.

Even if OSHA receives none of the additional funding it seeks, employers should take note of the clear signals that OSHA has given employers of its intentions in its budget justification:

  • OSHA fully intends to respond to the thousands of injuries it expects will be reported in response to the new recordkeeping rule.  Employers must make certain that their safety and human resources professionals know when and how to appropriately report injuries to OSHA and should expect OSHA to act upon these reports.
  • OSHA is likely to impose greater penalties, even in the absence of an increase to the statutory penalties currently available to the agency.  OSHA inspectors do not consistently impose the maximum penalties available to them when issuing citations under the current penalty scheme.  Having clearly expressed its dissatisfaction with the deterrent effect of its penalties, OSHA will likely urge its compliance officers to impose the highest possible penalties when issuing citations going forward.
  • High hazard workplaces remain a top priority for OSHA.  The agency will, to the extent possible, continue to deploy its inspectors to businesses with high injury and illness rates, worksites subject to the Process Safety Management standard, and worksites presenting musculoskeletal issues.

OSHA has been very aggressive in its enforcement efforts and in seeking large penalties over the last several months.  The initiatives it has outlined in its budget justification signal that this will not change, and in fact, will become more intense in coming months.  Employers are well-advised to learn their rights and best practices for preparing for an OSHA Inspection.  Moreover, employers with worksites that present any of the high hazard risks outlined above should seriously consider engaging counsel to conduct an attorney-client privileged OSHA compliance audit.  The Occupational Safety and Health Review Commission has held that compliance audit reports created by third party experts are protected from disclosure to OSHA when they are conducted to aid counsel in providing compliance advice.  By conducting such an audit, employers can assess for themselves whether they should be concerned when OSHA comes knocking and if so, improve safety practices and equipment on their own initiative.  Such actions demonstrate an employer’s commitment to safety, while protecting against the ominous possibility of OSHA using its internal audit report as a guide to potential health and safety issues in the workplace.

Encore Webinar: OSHA Forecast: Developments to Watch in 2015 and Beyond

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Valerie Butera, Member of the Firm in the Labor and Employment practice, will present a complimentary webinar, hosted by Midwest Employers Casualty Company, on January 27 at 11:00 a.m. EST titled “OSHA Forecast: Developments to Watch in 2015 and Beyond.”

This webinar will delve into OSHA issues that will impact a wide range of industries in 2015. In addition to a greater focus on enforcements and inspections, changes will occur for recording injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log as well as reporting changes of severe injuries or illnesses.

For more information and to register for this webinar, click here.

Are Your Drivers Following OSHA’s Best Practices for Winter Driving?

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On January 11, 2015, a multi-vehicle pile-up took place in west Michigan involving nearly 200 vehicles, including at least one truck carrying fireworks, and another carrying formic acid.  The formic acid caused a HAZMAT event and the fireworks exploded in the truck that was carrying them.  Many were badly injured in the accident, including two firefighters who responded to the exploding fireworks.  Tragically, the driver of another semi-truck was killed.

Winter weather and hazardous driving conditions were significant causal factors in the pile-up.  Although OSHA does not have regulations specifically addressing winter driving, the agency does provide guidance for employers to help ensure the safety of employees engaged in this work.  Specifically, OSHA urges employers to take the following measures:

  • Train drivers how to recognize winter driving hazards, such as snow and ice-covered roads
  • Train drivers on the safeguards they should take in winter driving conditions
  • Ensure that drivers are properly licensed for the vehicles they operate
  • Create and enforce driver safety policies
  • Implement an effective maintenance program for all vehicles and mechanized equipment that workers are required to operate
  • Ensure that properly trained employees inspect the following vehicle systems to determine if they are working properly:
    • Brakes – Brakes should provide even and balanced braking.  Also check that brake fluid is at the right level.
    • Cooling system – Ensure a proper mixture of 50/50 antifreeze and water in the cooling system at the proper level.
    • Electrical system – Check the ignition system and ensure that the battery is fully charged and that the connections are clean.  Check that the alternator belt is in good condition with proper tension.
    • Engine – Inspect all engine systems.
    • Exhaust System – Check exhaust for leaks and that all clamps and hangers are snug.
    • Tires – Check for proper tread depth and no signs of damage or uneven wear.  Check for proper tire inflation.
    • Oil – Check that oil is at proper level.
    • Visibility Systems – Inspect all exterior lights, defrosters, and wipers.  Install winter windshield wipers.
  • Ensure that there is an emergency kit in every vehicle

In order to keep employees safe on the road, employers should also quiz employees to ensure that they understood the training.  Results of the quizzes and any other training-related documents should be kept on file.  All paperwork related to vehicle maintenance should be kept on file as well.  Even though there are no OSHA regulations specific to winter driving, and employers certainly cannot control everything, they must always provide the safest possible work for their employees and OSHA can issue citations where it finds that an employer has failed to do so – even where there are no specific standards regulating the potential hazard.  By taking these simple measures, employers can demonstrate their commitment to safety to both their employees and to OSHA.

OSHA’s Revised Recordkeeping and Reporting Rules for Retail in 2015

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Valerie ButeraRetailers, get ready for OSHA’s revised recordkeeping and reporting rules, effective January 1, 2015.

As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer subject to the rules. The new reporting requirements apply to all retailers, even those included in the exempt list.

See the advisory for more information – below is an excerpt of my tips for retail employers:

  • Train your safety and human resource professionals and your managers on the new reporting requirements.  Again, all retailers must promptly report to OSHA any fatalities, amputations, loss of eye incidents, or in-patient hospitalizations.
  • Be aware that you can report to OSHA by:
    1. Calling OSHA’s free and confidential number: 1-800-321-OSHA (6742)
    2. Calling your closest Area Office during normal business hours
    3. Using the new online form that will soon be available on OSHA’s website
  • If you have retail establishments in one or more of the jurisdictions with a state plan, contact the state plan’s office to determine when you must comply with the rule and if the state plans’ reporting rules have additional requirements.  OSHA has encouraged state plans to require compliance by January 1 but recognizes that not all plans will be able to do so.
  • Contact counsel for advice on how to best navigate an OSHA inspection to ensure your preparedness should OSHA decide to investigate the circumstances leading to a reportable injury or illness.
  • To the extent that any of these newly reportable incidents have taken place at any of your retail establishments in the past, review the details of the incident and audit that facility and others that you believe may pose safety concerns.  Identify safety hazards and address any possible health or safety hazards that you discover.
  • If you are among the newly identified retail industries required to complete OSHA’s injury and illness recordkeeping, seek assistance from counsel in navigating these very complex requirements.  Ensure that safety and human resource professionals in your organization are properly trained and fully understand how and when to record an occupational illness or injury in your OSHA logs.
  • Retailers that have already been subject to the recordkeeping standard should review their logs to spot potential trouble spots, and provide refresher training to safety and human resource professionals in order to help ensure full compliance with the rules.

Complimentary Webinar Video: OSHA Forecast, 2015 and Beyond

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See below for a recording of my recent webinar, “OSHA Forecast: Developments to Watch in 2015 and Beyond.”

As I discuss, in 2015, many more industries will for the first time be required by OSHA to record injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log. The reporting of severe injuries or illnesses is also changing, and we anticipate a greater focus on enforcements and inspections.

Topics include:

  • Where we are now and the direction of OSHA in 2015
  • Recording and recordkeeping requirements
  • Whistleblowing and its impact on your business
  • Preparing for increased OSHA inspections of incidents
  • Rulemaking and potential changes in current programs
  • Ebola and other infectious diseases

The video is also available on Epstein Becker Green’s Youtube channelclick here to download the slides.

OSHA Law Update Receives “Top Blogs” Designation

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OSHA Law Update - Top BlogsI am pleased to announce that LexisNexis has recognized this blog as one of the “Top Blogs for Workers’ Compensation and Workplace Issues” for 2014.

According to LexisNexis, this year’s honorees include “the best of the best—those legal blogs that provide insightful analysis and those business-oriented blogs that offer valuable tidbits of practical information and best practice tips for employers, insurers, risk managers and other professionals.”

In recognizing our blog, LexisNexis notes that “members of the practice group offer a plethora of posts on workplace safety and related concerns” and highlights several recent blog entries including posts about Black Friday safety policies and issues for retailers, employer strategies to address Ebola in the workplace, and OSHA’s new guidance on hospital safety issues, among others.

We are very honored that others value the content of our blog. We know that employee safety is of utmost concern to most employers and those issues, combined with increased regulatory and enforcement pressures from the Occupational Health & Safety Administration, mean employers are seeking information they can use to help prepare and protect their businesses, now more than ever.

Our blog can be the first step in gathering important information. Our posts are an extension of the full gamut of occupational safety and health law services my colleagues and I in Epstein Becker Green’s Occupational Safety and Health (OSHA) practice offer to a diverse range of clients throughout the United States, from counseling on safety and health matters to representing management in safety and health litigation arising out of enforcement actions in both federal and state OSHA-administered plans.

Please stay tuned for more and be sure to subscribe via email – see the right-hand margin to enter your email address. Thank you!

OSHA Announces Its Regulatory Priorities for 2015

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On November 21, 2014, the Department of Labor released its Agency Rule List, which provides the status of all rulemaking efforts at each of its agencies.  OSHA dominated the list of regulatory activity in the Department, listing 26 regulations in the prerule, proposed rule, and final rule stages. 

Of these 26 items, OSHA announced that its top regulatory priorities include:

  • Efforts to control exposure to crystalline silica
  • Enhancements to current infectious disease protocols in healthcare and other high risk environments
  • Issuance of a final rule modernizing its reporting system for occupational injuries and illnesses, requiring electronic submission of injury and illness survey data, which, notably, would be made publicly available
  • Issuance of final rules regarding procedures for handling whistleblower complaints under 9 of the 22 federal statutes which include whistleblower protection provisions that OSHA has been tasked with investigating and enforcing

Hidden among the collection of proposed regulatory actions is OSHA’s plan to issue a Notice of Proposed Rulemaking by the end of the year seeking to amend its recordkeeping regulations to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.  This proposal is clearly an attempt to circumvent the Volks decision by the D.C. Circuit Court of Appeals (AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)), in which the court held that a plain reading of the six-month statute of limitations in the OSH Act limits the period of time in which OSHA can issue a recordkeeping citation to six months.  Otherwise, the court reasoned, the Secretary of Labor could rely upon document retention rules contained within various OSHA standards to tack on extra time to the statute of limitations, potentially leading to absurd results and giving the Secretary the leeway to extend the statute of limitations forever, simply by adding a never-ending document retention requirement to any given recordkeeping rule.

Finally, and predictably, two longstanding controversial topics were relegated to the agency’s long term action list.  Both the proposed stand-alone combustible dust standard and updates to the recently amended Hazard Communication Standard (which includes the undefined term “combustible dust” within the definition of “hazardous chemicals” regulated under the standard) have been added to the list, indicating that regulated industries must continue waiting for a clear and intelligible definition of the term.  And the so-called “I2P2” (Injury and Illness Prevention Program) has also been shelved for an indeterminate period of time.

 

EBG is Featured Webinar Speaker – Safety of Temporary Workers in California: Strategies for Meeting Cal/OSHA and Fed/OSHA Compliance Obligations

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On Monday, December 1 from 10:30 a.m. to 12:00 p.m. Pacific, our colleague Alka Ramchandani will be a featured speaker in a webinar hosted by California Employer Resources.

Ms. Ramchandani will identify the potential risks and liability associated with retaining temporary workers in California. She will provide strategies on how to minimize risk and liability when hiring temporary workers by ensuring all contractual agreements, expectations, and performance requirements are in place. 

As California companies hire more temporary workers to deal with economic, staffing, and business challenges, more employers are at risk for noncompliance with state and federal safety regulations regarding temporary workers. Although temporary contractor agencies in California are, in theory, responsible for the workers’ safety, your company as the host could be found responsible and held liable for work-related injuries and illnesses of temporary workers. 

During this webinar, you will learn:

  • Who is considered a “temporary employee” under the law;
  • To what extent you are responsible for temporary worker safety;
  • Which duties put temporary worker safety at greatest risk;
  • How California workplaces are affected by Fed/OSHA’s temporary workers’ initiative;
  • Strategies to comply with your Cal/OSHA requirements regarding temporary workers; and
  • Recommended practices for reducing risk and liability, and more!

Take this opportunity to learn how to keep your temporary workers safe on the job and reduce your risk of noncompliance and costly Cal/OSHA or Fed/OSHA citations.

Click here to learn more and to register.

Complimentary Webinar – OSHA Forecast: Developments To Watch in 2015 and Beyond

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To register for this webinar, please click here.

Join Valerie Butera, Member of the Firm in the Labor and Employment practice on Wednesday, December 10, 2014 at 1:00 p.m. EST for a 60-minute webinar.

This webinar will delve deeper into OSHA issues that will impact a wider range of industries in 2015.   In addition to a greater focus on enforcements and inspections, changes will occur for recording injuries and illnesses in the OSHA 300 Injury and Illness Recordkeeping log as well as reporting changes of severe injuries or illnesses.

Topics will include:

  • Where we are now and the direction of OSHA in 2015
  • Recording and recordkeeping requirements
  • Whistleblowing and its impact on your business
  • Preparing for increased OSHA inspections of incidents
  • Rulemaking and potential changes in current programs
  • Ebola and other infectious diseases

Registration is complimentary.   To register for this webinar, please click here.

OSHA Warns Retailers It Expects Better Than Business as Usual on Black Friday

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With the holiday shopping season fast approaching, OSHA has reached out to retailers strongly encouraging them to adopt a set of Crowd Management Safety Guidelines for Retailers, in addition to their existing safety and health policies and procedures.

Citing the tragic death of a retail employee who was crushed during a stampede at a Black Friday event in 2008, OSHA has urged the adoption of these crowd control protocols as a critical step for employers and store owners to take in ensuring employee safety during the holiday shopping rush, and other events where large crowds may gather.  OSHA recently sent letters directly to major retailers, retail trade associations, and fire marshals enclosing its recommended crowd management guidelines and encouraging employers and first responders to establish a plan well ahead of events likely to draw large crowds, such as Black Friday.

Crowd management plans should include, at a minimum:

  • Barricades or rope lines that do not start immediately in front of store entrances to manage pedestrian traffic;
  • Police officers or other trained security or crowd management personnel on site;
  • Communication to shoppers of updated information about the event and the store, such as the location of entrances and exits, store opening and closing times, and the location of hot items within the store;
  • Additional staff sufficient to meet the needs of large crowds of customers;
  • Crowd management training for all employees to ensure that they understand how to manage the event;
  • Prevention of additional shoppers from entering the store when it is at or near its maximum occupancy level;
  • Clear and unobstructed pathways to all exit doors, which should be unlocked;
  • Emergency procedures in place in case a dangerous situation does arise; and
  • Instructions to employees that in the event of an emergency they should follow instructions from first responders regardless of company rules.

If they have not already done so, retailers should begin crowd management planning for Black Friday now.  Reach out to local police and other first responders to inform them if large crowds are expected at your stores on Black Friday and coordinate a response plan in case an emergency takes place.  Taking time to employ these simple measures will go a long way towards ensuring that employees enjoy a safe and healthy holiday season.