OSHA Law Update

A Hazard Communication

Webinar, April 8: OSHA’s Temporary Worker Initiative

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Our colleague Eric J. Conn, Chair of Epstein Becker Green’s OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA’s Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

This webinar is the first of a five-part series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.

Read more about the webinar and the series, or click here to register.

OSHA to Target Auto Supply Manufacturers

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By Amanda R. Strainis-Walker

OSHA recently launched a Regional Emphasis Program (REP) that will focus enforcement resources on employers operating in the automotive supply manufacturing industry.  This new Auto Supply Manufacturers enforcement program will target manufacturers in the southeast that supply engines, airbags, trim, or any other automotive products.  The specific geographic areas covered by the inspection program include at least Georgia, Mississippi, and Alabama.

“Hazards associated with the Auto Parts Supplier Industry that are the focus of this REP continue to be the source of serious injuries, including amputations, and deaths to employees,” OSHA explained in the REP.  “The objective of this REP is to reduce employee exposures to safety related hazards in the Automotive Parts Supplier Industry.”

As a result of the REP, most automotive supply manufactures located in the Southeast can expect a comprehensive, wall-to-wall OSHA inspection within the next two years.  The only way these automotive supply manufacturers can avoid such an inspection is if they were already the subject of a comprehensive OSHA inspection during the preceding two years, or if they were mistakenly identified as an automotive supply manufacturer under NAICS classification code –  3663XX.

OSHA Area Offices have started to send letters notifying automotive supply manufacturers about the REP, as well as common causes of occupational injuries in the industry—machine guarding, lockout/tagout (LOTO), and electrical hazards.  These topics will also be the primary focus of inspections under the enforcement program.  The automotive supply manufacturers receiving the letter will be at the beginning of the inspection cycle, and should take steps now to prepare for OSHA’s knock on the door.

Recommended Steps to Prepare:

  1. Ensure injury and illness recordkeeping forms are current, accurate, and ready to produce to OSHA.
  2. Review written programs to confirm they are up-to-date, compliant, and consistent with what is happening on the plant floor.  Focus on LO/TO, including the requirement to conduct annual LO/TO certifications.
  3. Certify employee training is current, and fill in any gaps as needed.
  4. Conduct regular walkthrough inspections to affirm employees are following company policies and training.
  5. Consider having a third-party safety audit conduct conducted, preferably under the protection of the attorney-client privilege.

Here is a copy of the Auto Parts Industry Emphasis Program directive.  Please contact us with questions about this new emphasis program.

OSHA Forecast – 5 Important OSHA Issues to Monitor in 2014

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By the national OSHA Practice Group at Epstein Becker & Green

As we closed the book on 2013 — a truly remarkable year of OSHA enforcement and regulatory activity — we look to the future, and think about what to expect from OSHA in 2014.  Over the next couple of weeks, we will roll out what we believe are the 5 most significant OSHA developments to monitor in 2014.

If you are interested in how accurate our past predictions have been, take a look at these articles from December 2011 forecasting five OSHA developments for 2012 and from December 2012 predicting three developments from OSHA in 2013.

Without further ado, here are the 5 OSHA-related developments you should anticipate in 2014, so says the collective wisdom of the national OSHA Practice Group at Epstein Becker & Green:

1.      A Busy OSHA Rulemaking Docket

Although OSHA enforcement has reached levels never seen before by every measure, rulemaking activity under the current Administration has been slow.  During President Obama’s first term, OSHA identified numerous rulemaking initiatives in its periodic Regulatory Agenda updates, including rules for combustible dust, Crystalline Silica, Beryllium, and an Injury and Illness Prevention Program (I2P2) ruleAll of these proposed rules, however, missed important rulemaking deadlines or were completely set-aside.  We expect that to change in 2014 and for the balance of this Administration, as the OSHA leadership team will strive to leave their legacy.

Just as we saw OSHA deemphasize rulemaking in the year leading up to the 2012 Presidential election, we are already seeing signs of a typical post-election, second term, aggressive rulemaking calendar from OSHA.  The first sign of the new rulemaking push could be seen in speeches by David Michaels, the Assistant Secretary of Labor for OSHA, who characterized the proposed I2P2 rule as his and OSHA’s “highest priority.”  Second, OSHA recently issued its Fall 2013 Regulatory Agenda, which, as we expected, returned several rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar.  Finally, OSHA has also introduced new rules, such as a proposed rule to require employers to proactively report to OSHA injuries and illnesses, not just record them on the 300 Log.  Check out our article about a burdensome new Injury & Illness Reporting Rule advanced by OSHA.  Other important rules in the proposed or pre-rule stage to monitor in the coming year include:

2.      OSHA Will Focus on Temporary Worker Safety

The treatment of temporary workers is expected to become more significant as the Affordable Care Act (“ACA”) is implemented, particularly when the “Employer Mandate” kicks in.  The ACA will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week.  This will result in employers using more part-time workers and hiring more contractors; i.e., workers who will not be counted towards the 50-worker minimum for ACA coverage.  Both qualities are commonly associated with “temporary workers.”

With an expected increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014, and has already launched a Temporary Worker Initiative.  OSHA’s stated goals for the Temporary Worker Initiative are to:

  • Protect temporary workers from workplace hazards;
  • Ensure staffing agencies and host employers understand their safety & health obligations; and
  • Learn information regarding hazards in workplaces that utilize temporary workers.

To achieve these goals, OSHA is developing outreach materials (such as fact sheets and webpages), and will use a combination of enforcement and training, but based on OSHA’s track record, we expect this will involve mostly enforcement.  OSHA’s director of enforcement programs already issued a memorandum to its Regional Administrators instructing them to increase efforts to investigate employers’ use and protection of temporary workers.  This side of the Temporary Work Initiative is already showing results.  In the last quarter of FY 2013 alone, OSHA issued citations at 262 worksites where temporary workers were allegedly exposed to safety and health violations.  Additionally, OSHA has conducted more than twice as many inspections of staffing agencies this year as it did last year.  This trend will undoubtedly continue in 2014, so it is critical for host employers and staffing agencies to understand the dividing line of responsibility for addressing hazards to which temporary workers are exposed.

3.      Hazard Communication Comes Into Focus

December 1, 2013 marked the first key implementation deadline of OSHA’s Hazard Communication standard, which was recently amended to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals. Continue Reading

Webinar Recording: Preparing for and Managing an OSHA Inspection at a Grain Facility

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On Tuesday, February 11th, 2014, in conjunction with the Grain Journal, Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green, delivered a webinar focused on “Preparing For and Managing an OSHA Inspection at a Grain Handling Facility.”  The 90-minute webinar, including a Q&A session, was recorded, and the Grain Journal has made the recording available online.

While this briefing touched on some unique enforcement issues at grain handling facilities, the background information about OSHA inspections and the strategies and recommendations are applicable across all industries.

The February 11th webinar about preparing for and managing an OSHA inspection was particularly important now, because OSHA has increased enforcement to levels never seen before, from huge increases in the numbers of inspections, civil penalties, and citations characterized as “willful” or “repeat,” to more criminal referrals.  OSHA has also introduced more aggressive strategies during inspections, creating a minefield for employers across all industries.  The grain industry in particular, however, has been under a unique level of scrutiny.  The consequences of an employer in the grain industry being caught unprepared for an OSHA inspection, therefore, are more dire now than ever.

Topics covered in the webinar:

  • Employers’ Goals for an OSHA inspection
  • Steps employers should take before OSHA begins an inspection
  • Employers’ and employees’ workplace inspection rights
  • Stages of OSHA inspections, with tips to manage each stage.

The recording includes an audio broadcast with a video of the accompanying PowerPoint presentation.  Here is a link to the recording of the Preparing for and Managing an OSHA Inspection Webinar.

This was the third OSHA law briefing in a series of webinars for the grain industry in conjunction with the Grain Journal.  The first webinar in the series, presented in September 2013,  was entitled “New OSHA Sweep Auger Enforcement Policies… How They Will Affect You,” and the second, delivered in December 2013, was entitled “Railcar Fall Protection: What OSHA Requires of Grain Elevator Operators.”

EBG’s National OSHA Practice Recognized as the Occupational Health & Safety Law Firm of the Year

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Epstein Becker & Green is proud to report that Corporate INTL Magazine has named our national OSHA Practice Group based out of Washington, DC as the “Occupational Health & Safety Law Firm of the Year“ in its 2014 Global Awards.

Here is a press release that EBG put out about the award.

The award was given after Corporate INTL’s research department conducted extensive reviews, drew insight from business leaders, advisers and investors throughout the world, and took feedback over the past year from the readership of Corporate INTL Magazine (over 70,000 company leaders and advisers), law firm partners, in-house counsel, CFO’s, CEO’s and Corporate Directors from all over the world.

According to Corporate INTL:

The award praises the work of firms who have been successful over the past 12 months in portraying excellent know-how and business savvy. Firms are selected based on independent research the magazine conducts as well as feedback from its editorial team. Selection is based on service type, service range, business type, geographical location, how the business operates, and the expertise each team can offer to companies that either trade or may want to trade in their chosen jurisdiction.  Corporate Intl is at the forefront of connecting corporate leaders to the world’s top lawyers, consultants and accountants since its founding in 2005.

OSHA-Related New Year’s Resolutions and Wishes for 2014

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By Eric J. Conn and Casey M. Cosentino

As the clock ticked down and the apple dropped to start a new year, many of us reflected on the year that had passed and our resolutions and New Year’s wishes for the upcoming year.  Probably not many of you were thinking about your resolutions and New Year’s wishes as they related to everybody’s favorite regulatory agency, OSHA, so let us do that for you.  Here are three New Year’s wishes about OSHA enforcement that the national OSHA Practice Group at Epstein Becker & Green hopes to see come true in 2014 for our clients and friends in Industry:

1.      We wish for OSHA to drop or amend its proposed changes to the Injury & Illness Recordkeeping rule.

Late last year, OSHA proposed some major changes to its Injury and Illness Recordkeeping regulations. The proposed rule would transform the current Recordkeeping framework in which employers’ records of workplace injuries remained private to the employer unless: (i) OSHA requests them during an inspection at the workplace; or (ii) the employer receives a rare request for the recordkeeping data from OSHA or the Bureau of Labor Statistics in a special survey.  Under the proposed rule, employers’ injury and illness data will become an open book, requiring the collection of larger amounts of data on work-related injuries and illnesses, as well as making much of that information public.  Here are the major provisions of the proposed rule:

  • Requirements for Large Employers: The new rule will require employers with 250 or more workers to submit to OSHA every quarter the individual entries on their OSHA 300 Logs and the information entered on each OSHA 301 Incident Report.  OSHA would then post the data on its public website after redacting only injured employees’ identifying      information.
  • Requirements for Small Employers: The proposed rule would also require employers with 20 or more workers in designated industries to submit information electronically from their 300A Annual Summary forms to OSHA, which OSHA also intends to publicize.

We anticipate that the new reporting requirements and publication of employers’ injury records will significantly increase the burden on employers, both in man hours and cost, and will trigger significant unexpected implications for the regulated community, including: (i) extraordinary burden on employers to comply; (ii) more inspections and citations by OSHA; (iii) discourage employers from recording all recordable injuries; (iv) invasion of injured employees’ privacy; and (v) harm to employers’ reputations.  The public perception of certain employers may be skewed because this reported information would be publicized. Specifically, under the proposed rule, OSHA would only make public the basic data provided in injury and illness recording forms.  The public, therefore, could take the injury and illness data out of context, as the public would not be privy to the details behind injuries, safety measures employers adopt, how the data compares to industry averages, or any other relevant information related to the circumstances of the injury or illness.  For more information about the proposed rule and its potential impacts, check out our article from last month.

Our New Year’s wish for the regulated community is that this rule not be implemented, or at least for the “publication” element of the rule to be stricken.  OSHA is accepting public comments on the proposed rule as written and several alternatives published in the Federal Register. Considering the extensive impact the proposed rule will have on employers, industry participation in the comment stage of the rulemaking process, especially with the help of experienced OSHA counsel, will be essential in driving fundamental and necessary revisions to the proposed rule.

 

2.      We wish for OSHA to change the way it implements the Severe Violator Enforcement Program to respect Constitutional Due Process.

As one would expect for a program designed for recidivists, the punitive elements of OSHA’s Severe Violator Enforcement Program (“SVEP”) are significant, including: (a) inflammatory public press releases branding employers as a “severe violators”; (b) adding employers’ names to a public log of Severe Violators; (c) mandatory follow-up inspections at the cited facilities; (d) numerous inspections (up to ten) at sister facilities within the same corporate enterprise; and (e) enhanced terms in settlements (such as corporate-wide abatement, requiring third party audits, etc.).

Our major frustration with the SVEP is not with the severity of the consequences, it is with the timing in which employers are “qualified” into the Program.  As OSHA currently implements the SVEP, employers are qualified into SVEP before final disposition of the underlying citations.  In other words, employers begin to face the harsh punishments before OSHA has proven that the employer violated the law at all, let alone in the egregious ways that qualify them for SVEP.  We have written extensively about the SVEP here on the OSHA Law Update Blog.  For more information, check out any of these articles.

Our New Year’s wish that OSHA amend the Severe Violator Enforcement Program to delay qualifying employers into the Program until the underlying qualifying citations become a Final Order of the OSH Review Commission.  In the alternative, we wish for a Court to evaluate and strike down the Constitutionality of this element of SVEP.

 

3.      We wish for OSHA to revisit its unlawful interpretation regarding participation in OSHA inspections by union representatives at non-union worksites.

Last year, OSHA issued a formal Interpretation Letter of its regulation governing who may participate in OSHA walkaround inspections (29 C.F.R. 1903.8(c) – Representatives of Employers and Employees). Continue Reading

Free Webinar Rescheduled: Preparing for and Managing an OSHA Inspection at a Grain Handling Facility

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On Tuesday, February 11th, 2014 at 3 PM (Eastern) / 2 PM (Central), Eric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green will conduct a free webinar about “Preparing For and Managing an OSHA Inspection at a Grain Handling Facility.”  This is the third OSHA law briefing in a series of webinars for the grain industry in conjunction with the Grain Journal.  While the briefing will touch on some unique issues at grain handling facilities, the background information and recommendations about OSHA inspections will be applicable across all industries.

OSHA has increased enforcement to levels never seen before, from huge increases in the numbers of inspections, civil penalties, and citations characterized as “willful” or “repeat,” to more criminal referrals.  OSHA has also introduced more aggressive strategies during inspections, creating a minefield for employers across all industries.  The grain industry in particular, however, has been under a unique level of scrutiny.  The consequences of an employer in the grain industry being caught unprepared for an OSHA inspection, therefore, are more dire now than ever.

This 60-minute interactive program that you can join from your own desk will review employers’ and employees’ rights during an OSHA inspection, provide detailed recommendations for actions employers can and should take before and during inspections, and discuss strategies to help ensure the best possible outcome from an unexpected visit by OSHA.

Topics to be covered include:

  • Employers’ Goals for an OSHA inspection
  • Steps employers should take before OSHA begins an inspection
  • Employers’ and employees’ workplace inspection rights
  • Stages of OSHA inspections, with tips to manage each stage.

This is an audio broadcast with a live powerpoint presentation on your computer screen.  Audio will be available through your computer speakers or your telephone.  High-speed internet is required for this event.

To register for free, click here.

Any questions, call Grain Journal’s Webinar Manager Greg Sullivan at 800-728-7511.

Reminder — February 1st is a Critical OSHA Injury & Illness Recordkeeping Deadline

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By Amanda R. Strainis-Walker and Eric J. Conn

February 1st is an important annual OSHA Injury and Illness Recordkeeping deadline for all U.S. employers, except for those with only ten or fewer employees or who operate in enumerated low hazard industries such as retail, service, finance, insurance or real estate (see the industries partially exempted from OSHA’s Injury & Illness Recordkeeping regulations at Appendix A to Subpart B of Part 1904).  Specifically, by February 1st every year, employers are required by OSHA’s Recordkeeping regulations to:

  1. Review their OSHA 300 Log;
  2. Verify that the entries are complete and accurate;
  3. Correct any deficiencies on the 300 Log;
  4. Use the injury data from the 300 Log to develop an 300A Annual Summary Form; and
  5. Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked by all employees covered by the OSHA 300 Log that year.

The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive,” including a signature by the company executive on the 300A Summary Form.  A common mistake that employers make is to have someone sign the 300A Form who is not at a senior enough level to constitute a “company executive.”  The company executive who must certify the 300A must be one of the following:

  • An owner of the company (only if the company is a sole proprietorship or partnership);
  • An officer of the corporation;
  • The highest ranking company official working at the establishment; or
  • The immediate supervisor of the highest ranking company official working at the establishment.

What it is that the company executives are certifying is that they have examined both the OSHA 300 Log and the 300A Annual Summary Form, and that they reasonably believe, based on their knowledge of the process by which the information was recorded, that the 300A Annual Summary Form is correct and complete.

After certifying the recordkeeping documents, OSHA’s Recordkeeping regulations require employers to post the signed copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted.  The 300A must remain posted there for three months, through April 30th.

Another common mistake employers make is to not prepare or post a 300A Form if there were no recordable injuries or illnesses during the year.  In that instance, OSHA regulations still require employers to completely fill out the Form 300A, enter zeros for each column total, and post the 300A just the same.

After April 30th, employers can take down the 300A Form, but must keep (at a central location or at the facility to which the forms apply) a copy of the OSHA 300 Log, the 300A Annual Summary Form, and any corresponding 301 Incident Report forms for five years following the end of the calendar year that those records cover.  Here are exemplars of all the OSHA Recordkeeping forms.

One more common mistake employers make is to put away the old 300 Logs, and never look back, even if new information comes to light about injuries recorded on those logs.  OSHA’s Recordkeeping regulations require employers to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to reflect changes that have occurred in the classification or other details of previously recorded injuries and illnesses during the five year retention period.  Note, this requirement applies only to the 300 Logs; there is no duty to update 300A Forms or the OSHA 301 Incident Reports.

EBG’s OSHA Injury and Illness Recordkeeping Checklist is a great resource to consult when annually reviewing, verifying, and certifying your Recordkeeping logs and forms.

OSHA Extends Comment Period for Controversial Injury and Illness Recordkeeping Rule

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By Lindsay A. Smith and Eric J. Conn

Last month, we published an article about OSHA’s proposed new Injury and Illness Recordkeeping and Reporting rule that would create a minefield for hundreds of thousands of employers nationwide.  In a January 6, 2014 press release, OSHA announced that it would extend the comment period for this proposed rule by 30 days in response to a request from the National Association of Home Builders (“NAHB”).  NAHB made the request because the rulemaking overlaps with the proposed crystalline silica rulemaking and it needed more time to disseminate the relevant information to its members and coordinate responses.  March 8, 2014 is now the deadline by which all interested parties must submit comments on the injury and illness recordkeeping and reporting rule, replacing the original deadline of February 8, 2014.  For planning purposes, note that the new comment deadline is on a Saturday (likely because OSHA was looking at a 2013 calendar when setting it).

OSHA’s proposed rule lays out several major changes, including requiring employers to electronically submit to OSHA their injury and illness records, whereas the current rule require employers to maintain these records internally, and to share them only in very limited circumstances.  That is hardly the most troublesome element of the proposed new rule, however.  OSHA also intends now to broadcast the injury and illness information on a public website, for no legitimate safety reason.  Indeed, OSHA has no reason to advertise employers’ injury and illness information other than for public shaming.  Employers, therefore, are rightfully concerned about the rule.

Employers and trade associations have expressed a host of different concerns about the proposal to publicize injury and illness records:

  1. Employers fear that publicized injury and illness records will be mischaracterized, and employers’ public perceptions will be unjustly skewed.  Without context as to how the injuries actually occurred and what safety measures the employer had implemented to prevent workplace injuries, the public could jump to incorrect and harmful conclusions about the employer.
  2. Unions will almost certainly use the out-of-context injury and illness information to mislead employees to facilitate organizing campaigns or to advance their interests in contract negotiations.
  3. The publication of injury data will likely discourage some employers from recording all injuries and illnesses, driving the precise opposite result OSHA was hoping to achieve.
  4. Publication of injury and illness records may also lead to disclosure of employers’ proprietary information as well as private health information of injured employees.
  5. OSHA’s publication of injury and illness records deliberately places fault for all injuries upon the employer, despite the express understanding during the rulemaking for the original Recordkeeping rule that the act of recording workplace injuries should not create any implication of fault.  OSHA has recognized that many injuries and illnesses caused in the workplace are outside employers’ control.  This proposal to publish the injury information, however, implies that all recorded injuries were the fault of the employer, because OSHA’s sole motivation for publishing the information is to hold employers accountable in the eyes of the public.

Employers have also presented concerns about the cost and burden of actually submitting the injury and illness information to OSHA electronically, as set forth in the proposed rule.  The literature included with the proposed rule suggests that OSHA assumes a majority of employers already keep their injury and illness records electronically, so submission to OSHA should be doable without much extra time or expense.  Most employers, however, particularly small businesses, still keep injury records in hard copy.  Therefore, the time and expense to comply with the new rule will be far greater than predicted by OSHA, especially if the employer has 250 or more employees and, therefore, must submit records to OSHA four times every year. Continue Reading

Happy Holidays and Happy New Year from the OSHA Law Update blog and the National OSHA Practice at EBG

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From all of us in the national OSHA Practice Group at Epstein Becker & Green to all of you, happy holidays and happy New Year.  We wish you a holiday season filled with joy, and a safe and happy 2014. 

Thank you all for continuing to take time out of your busy days to read our articles and posts here on the OSHA Law Update blog.  As we celebrated the 2nd Anniversary of the OSHA Law Update blog on December 20th, another great year of bringing you fresh perspectives on important OSHA law topics, we had to stop and thank you for all of your positive feedback, comments, and questions, which give us the energy and enthusiasm to keep the OSHA Law Update blog fresh (no easy task).

Please contact us if you have questions about any of the content on the blog, ideas for other topics we should be covering, and of course, if there is ever anything our national OSHA Practice Group at Epstein Becker & Green can do to help you with OSHA law issues.