OSHA Law Update

A Hazard Communication

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.

Practical Strategies for Addressing Employee Concerns About Ebola in the Workplace

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By Valerie Butera

OSHA requires employers to provide safe jobs and workplaces for their employees. And generally employers can rely upon established OSHA standards to guide them in reaching that goal. But faced with employers’ numerous questions and concerns regarding Ebola hemorrhagic fever (Ebola) now that several patients with Ebola have been treated in the United States, OSHA has been slow to provide answers.

To date, OSHA has advised employers that certain established standards may apply in the event of possible worker exposure to Ebola. The agency has also issued a Fact Sheet providing guidance for workers and employers in non-healthcare/non-laboratory settings on cleaning and decontamination of Ebola on surfaces. In addition, OSHA has made clear that the so-called “General Duty Clause,” which requires employers to keep their workplaces free of recognized hazards that can cause death or serious harm to workers may be used to fill any gaps that existing OSHA standards do not cover, enabling OSHA to issue citations to employers that it determines have not taken every appropriate precaution to protect its employees.

In the absence of more specific guidance from OSHA, employers can take several steps now to reduce the risk of receiving an OSHA citation and, more importantly, help protect their employees from exposure to Ebola:

  • Conduct a risk assessment at your workplace, documenting your findings and actions taken to address the any identified issues.
  • Provide additional training necessary to protect employees from any risks identified in the risk assessment.
  • Inform employees if any of their job activities may put them at risk for exposure to Ebola.
  • Ensure that your employees have been provided with all of the personal protective equipment (PPE) needed for them to safely do their jobs.
  • Ensure that employees fully understand how to use the PPE by providing training on its use and conducting practice sessions using the equipment.
  • Establish a policy requiring supervisors to provide updated Ebola-related information as to employees as it develops.
  • Establish a point of contact for employees to address any questions they may have related to Ebola.

Above all, employers must keep open lines of communication with their employees. Employees may be fearful about their work conditions right now and need to know that their employers are on top of the situation and doing everything possible to ensure employee health and safety. This will not only improve employee morale – it will also reduce the likelihood of an unhappy employee filing a whistleblowing complaint with OSHA.