OSHA Law Update

A Hazard Communication

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.

Accomplished OSHA Attorney Valerie Butera Joins Epstein Becker Green

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Epstein Becker Green is pleased to announce that Valerie Butera, an accomplished Occupational Safety & Health (OSHA) lawyer, has joined as a Member of the Firm in the Employment, Labor, and Workforce Management practice. She will be based in the firm’s Washington, D.C., office.

Ms. Butera joins Epstein Becker Green from Arent Fox LLP. She is OSHA 30 certified and has substantial training and experience in process safety management (PSM). Her practice focuses on areas within OSHA such as catastrophe management, compliance counseling, rulemaking, inspections, as well as complex litigation.

“All employers face challenges protecting the safety and health of their workforce,” said David W. Garland, Chair of the firm’s Labor and Employment Steering Committee. “These issues combined with increased regulatory and enforcement pressures from the Occupational Health & Safety Administration mean employers may find themselves in need of top-notch OSHA representation now more than ever. Valerie is a great addition to our team and we look forward to continuing to build upon our OSHA capabilities and grow in this vital area.”

“Valerie brings to the firm not only strong subject matter knowledge but also a record of extraordinary success for her clients,” said David E. Matyas, Managing Shareholder of the firm’s Washington, D.C., office. “As our OSHA practice continues to represent employers and associations in complex OSHA matters, our clients will no doubt benefit from her abilities and experience.”

Ms. Butera said, “I am thrilled to join Epstein Becker Green given its focus on a core set of practices and industries. The firm’s national platform provides me with a wealth of resources to expand my practice and better serve my clients.”

OSHA and NLRB Create Loophole for Stale Safety Whistleblower Claims

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On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA.  The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.”  As a result of this agreement,

employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)) requires employees to file complaints alleging retaliation for protected safety related whistleblower activities within thirty days of the triggering adverse employment action.  The Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate, Labor and Pensions Subcommittee on Employee and Workplace Safety about OSHA’s whistleblower program.  One of the key points of his testimony was that between 300 and 600 Section 11(c) complaints per year (roughly 10%) were filed beyond the 30-day deadline.  Dr. Michaels added that at least 100 of these complaints barely missed the deadline — by less than a month.

The National Labor Relations Act (NLRA), on the other hand, addresses different types of claims and also provides for a much longer statute of limitations.  Section 7 of the NLRA provide: “Employees shall have the right to. . . engage in concerted activities for the purpose of collective bargaining or other mutual air or protection.”  Section 8 prohibits unfair labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”  The NLRA has a 6-month statute of limitations for claims of unfair labor practices.

Because the NLRA’s statute of limitations is six months longer than the OSH Act’s, OSHA agents will now advise employees who file an untimely Section 11(c) claim that their claims may qualify as unfair labor practices under the NLRA, and explain their rights to file such claims with the NLRB, where their claims could be timely.  For a claim to qualify for protection as an unfair labor practice, however, the claim must involve “concerted activities.”  Thus, not every employee who was unable to file a timely Section 11(c) complaint will have a viable unfair labor practice claim, even if it would be timely under the NLRA.

The NLRB has provided a set of talking points to OSHA to help the OHSA agents discuss these rights with employees:

  • OSHA recommends that you contact the NLRB as soon as possible, to inquire about filing a charge alleging unfair labor practices.
  • The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
  • The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union.
  • OSHA may not determine whether you are covered by the NLRA. Please contact the NLRB to discuss your rights under the NLRA.

OSHA also plans to include this information when it sends letters alerting employees that their 11(c) claims are being closed as untimely.

Neither the NLRB nor OSHA has addressed the legal issues posed by this agreement.  Congress intended that employees must file safety related whistleblower complaints very quickly, which is why it set such a short limitations period.  The short deadline for such claims makes sense because safety and health issues pose special risks; i.e., it is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting such issues could have grave consequences.  Creating a loophole or backdoor to extend the filing deadline for claims that could have been timely pursued as 11(c) claims by treating them as NLRA violations could discourage timely reporting under the OSH Act. Continue Reading

Webinar Recording — OSHA’s Severe Violator Enforcement Program

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On June 10, 2014, Epstein Becker Green’s national OSHA Practice Group presented a webinar regarding OSHA’s Severe Violator Enforcement Program (SVEP). The SVEP is an OSHA enforcement program intended by OSHA to direct its enforcement resources at employers whom OSHA believes are “indifferent to their OSH Act obligations.”

The webinar covered:

  • What the SVEP is;
  • How and when employers “qualify” into it;
  • What the consequences are for doing so;
  • Interesting data and trends about the SVEP; and
  • Tips to help employers avoid this fate.

This webinar was the second part in a five-part OSHA webinar 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 series, or click here to register for the remaining briefings.

As was mentioned during the webinar, these briefings will all be recorded, and the recording and slides from the Severe Violator Enforcement Program webinar are now available.  To download either or both, click here, scroll to the bottom of the page, insert the password “OSHA2” in the box, and click “Go.”  Links to a PDF of the slides and to the full recording of the webinar will appear at the bottom of the page.