Wood Cutter Takes Water BreakAs it gets hotter outside, employers should consider how best to protect their employees from work-related heat illness.  Thousands of workers fall victim to heat illness each year, and, tragically, many die from heat exposure at work.

Over the past several years, OSHA has significantly increased its focus on protecting employees from succumbing to heat illness.  Most recently, the agency has released a heat safety tool, available in both English and Spanish, which can be downloaded on an iPhone or Android device.  Employers can and should take advantage of this free app, which calculates the heat index for the worksite and displays a risk level to outdoor workers.  The app also provides a list of the measures that should be taken at that risk level to protect workers from developing heat illness.

Although all employers should be vigilant about protecting their employees from heat illness, employers whose employees spend most of the summer working outdoors (such as those in the construction, trade, transportation and utilities, agriculture, building and grounds maintenance, landscaping services, and support activities for oil and gas operations industries) should be particularly cautious.  Employers should have a heat illness prevention plan in place and ensure that their employees fully understand the dangers of heat illness and how to avoid it.

Although federal OSHA does not have a heat illness standard, the agency relies upon the general duty clause to issue citations for incidents involving heat illness.  Employers with worksites in California should be aware that Cal/OSHA does have comprehensive heat illness regulations in place, which have recently been enhanced, requiring employers to take many of the actions listed below—and then some—including maintaining a set of written procedures for complying with the state’s heat illness prevention standard.  Stricter regulations went into effect on May 1, 2015.

By taking just a few extra precautions, employers can significantly reduce the possibility of workers being affected by heat illness and demonstrate their commitment to worker safety.  Simple steps that every employer can take include:

  • implementing a period of acclimation into employees’ work schedules—gradually increasing the amount of time that they spend working in the heat, as well as the level of exertion;
  • making water readily available and encouraging employees to drink water at least every 15 minutes, even if they do not feel thirsty;
  • training employees on the signs of heat illness and how to respond to a heat illness emergency;
  • encouraging employees to wear a hat and light-colored clothing; and
  • encouraging employees to rest in the shade and cool down, as needed, and ensuring that they understand that they will not be reprimanded for taking such action.

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 OSHA Forecast – 5 Important OSHA Issues to Monitor in 2014

By Eric J. Conn, Head of the OSHA Practice Group at Epstein Becker Green

An industry contact recently asked me what five issues I expected OSHA would be focusing its enforcement efforts on for the balance of this year.  Here was my response:

1.  Emergency Exits & Exit Routes – A couple of months ago, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers were providing and maintaining adequate means of emergency exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes in compliance with 29 C.F.R. 1910.36.  We just wrote a blog post about this Exit initiative on the OSHA Law Update blog.   The directive applies to all industries and all workplaces, so I expect that will be one item OSHA looks at carefully in all inspections for at least the rest of the calendar year.

2.  Hazard Communication – Employers will be hearing a lot about OSHA’s Hazard Communication standard over the next few months.  As we reported here, OSHA revised its Hazard Communication Standard to align with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS), and published the new Final Rule last year.  Two significant changes contained in the revised standard require chemical manufacturers and users to implement new labeling elements and create and maintain Safety Data Sheets (SDSs) that follow a new standardized format.  A portion of the new requirements kicks in this winter.  Specifically, by December 1, 2013, employers must have completed training on the new label elements and the new SDS format.  Accordingly, I expect OSHA to spend some time addressing these issues in enforcement inspections to help spread the word that the new requirements have arrived.  Here is an article we wrote about the new HazCom Standard.

3.  LO/TO & Machine Guarding – OSHA’s regulations addressing amputation hazards; i.e., Lockout/Tagout and Machine Guarding, both rank high on the list of most frequently cited OSHA standards every year.  As a result, OSHA currently has in place a special emphasis program focusing inspection resources on these hazards.  Specifically, OSHA is in the midst of an Amputations National Emphasis Program, which targets compliance with the LO/TO and machine guarding standards.  That NEP has led to some significant enforcement actions, and I anticipate seeing OSHA continue to look out for those types of issues during inspections the balance of the year.

4. Fall Protection – Just like with amputation hazards, fall hazards continue to rank among the leading causes of serious injuries and fatalities in both general industry and construction, and OSHA’s fall protection standards continue to rank among the most frequently cited standards year after year.  Accordingly, OSHA almost always maintains Special Emphasis Programs targeting fall hazards.    Nine of OSHA’s ten Regions have active local or regional emphasis programs focusing inspection resources on fall hazards in either or both general industry and construction.

5.  Compliance with the Grain Standard — For the past few years, OSHA has been actively inspecting grain handling facilities in all major U.S. grain states under local emphasis programs.  While the LEPs continue to set a pretty high target for the number of grain elevator inspections annually, many regions have held back on inspections during the spring in summer, and plan to catch up on the annual target during the fall and winter (i.e., harvest season).  The reason being, there is generally not much activity at most grain elevators that OSHA is interested in during the spring and summer months.  Since employees are more often engaged in those work activities covered by the Grain LEPs during harvest season, such as entering bins, performing preventive maintenance, loading railcars, etc., the frequency of inspections at grain handling facilities will be particularly high for the rest of this year.

OSHA recently identified the 10 most frequently cited standards from FY 2012 (October 1, 2011 through September 30, 2012). There were no surprises on the list, and it was consistent with years past with only a slight shuffling in the order.

OSHA posts on its website the list of top 10 violations (it has not updated the site with the FY 2012 list yet) in order to “alert employers about these commonly cited standards so they can take steps to find and fix recognized hazards addressed in these and other standards before OSHA shows up. Far too many preventable injuries and illnesses occur in the workplace.”

Here is the list for FY 2012:

  1. 1926.501 –    Fall Protection (cited 7,250 times during FY 2012)
  2. 1910.1200 – Hazard Communication (cited 4,696 times during FY 2012)
  3. 1926.451 –    Scaffolding (cited 3,814 times during FY 2012)
  4. 1910.134 –    Respiratory Protection (cited 2,371 times during FY 2012)
  5. 1926.1053 –  Ladders (cited 2,310 times during FY 2012)
  6. 1910.212 –    Machine Guarding (cited 2,097 times during FY 2012)
  7. 1910.178 –    Powered Industrial Trucks (cited 1,993 times during FY 2012)
  8. 1910.305 –   Electrical, Wiring Methods (cited 1,744 times during FY 2012)
  9. 1910.147 –    Lockout/Tagout (cited 1,572 times during FY 2012)
  10. 1910.303 –   Electrical, General Requirements (cited 1,332 times during FY 2012)

This year, OSHA also reported the Top 10 standards in terms of the highest assessed total penalties for FY.  It is worth noting that excavation hazards are not among the 10 most frequently cited standards, but citations related to those hazards are the 7th most highly penalized.  That is likely a result of the fact that many excavation-related citations have been characterized lately as Willful or Repeat with much higher penalties than Serious violations.  Here is the list:

  1. 1926.501 — Fall protection, construction
  2. 1926.451 — Scaffolding, general requirements, construction
  3. 1910.147 — Control of hazardous energy (lockout/tagout), general industry
  4. 1910.212 — Machines, general requirements, general industry
  5. 1926.1053 — Ladders, construction
  6.  1910.178 — Powered industrial trucks, general industry
  7.  1926.652 — Excavations, requirements for protective systems
  8. 1910.1200 — Hazard communication standard, general industry
  9. 1910.305 — Electrical, wiring methods, components and equipment, general industry
  10. 1910.303 — Electrical systems design, general requirements, general industry

For purposes of comparison and evaluating trends, here is the Top 10 list of most frequently cited standards from FY 2011, which includes all of the same standards, only with slight differences in the order of frequency cited:

  1. 1926.451-  Scaffolding
  2. 1926.501-  Fall Protection
  3. 1910.1200-Hazard Communication
  4. 1910.134-   Respiratory Protection
  5. 1910.147-   Lockout/Tagout
  6. 1910.305-  Electrical-wiring methods
  7. 1910.178-   Powered Industrial Trucks
  8. 1926.1053-Ladders
  9. 1910.303- Electrical-general requirement
  10. 1910.212-   Machine Guarding

Last week, EHS Today Magazine ran our article in which we delve into more detail about OSHA’s amended Hazard Communication Rule (“HazCom”), and the integration of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”).  Check out the full article here, in which we detailed 10 important things employers need to know about the final HazCom Rule.  Here’s the short list:

  1. New Hazard Classification Criteria
  2. New Method for Evaluating Mixtures
  3. Amended Label Requirements
  4. Proscrictive Format for Safety Data Sheet
  5. Inclusion of Non-Mandatory Threshold Limit Values in SDSs
  6. Information and Training Requirements
  7. Other Effective Dates
  8. Inclusion of a Category of Hazards Not Otherwise Classified
  9. No Preemption of State Tort Laws
  10. Covers Combustible Dust Without Clarity

The article expands on our post here last month with a brief summary of the new HazCom rule.

By Julia E. Loyd and Eric J. Conn

Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program targeting Nursing Homes and Residential Care facilities (“Nursing Home NEP”).  In an accompanying Press Release, OSHA announced that the Nursing Home NEP aims to protect workers from safety and health hazards “common in medical industries.”  Effective upon its announcement and for a three-year period thereafter, the NEP focuses on ergonomic hazards (e.g., strains and sprains from patient  handling), exposure to bloodborne pathogens (e.g., needlestick injuries), workplace violence (e.g., assaults by patients or others), and other hazards commonly found within nursing homes and residential care facilities (e.g., exposure to hazardous chemicals or infectious diseases).

By way of background, the Nursing Home NEP is not the first of its kind.  Nearly a decade ago, in September 2002, OSHA issued a virtually identical Nursing Home NEP, which targeted the same types of employers and all of the same hazards except for workplace violence.  Today’s OSHA evaluated the need for a new health industry NEP, and reviewed 2010 data from the Bureau of Labor Statistics.  That review revealed that nursing and residential care facilities still had one of the highest DART rates of all industries.  Specifically, the DART rate for nursing and residential care was nearly three times the national average.  Reacting to this data, the Assistant Secretary of Labor for OSHA, David Michaels, declared:

“These are people who have dedicated their lives to caring for our loved ones when they are not well. It is not acceptable that they continue to get hurt at such high rates. . . .  Our new emphasis program for inspecting these facilities will strengthen protections for society’s caretakers.”

As was the case with the 2002 NEP, the new Nursing Home NEP focuses primarily on ergonomic stressors relating to resident handling, exposure to blood and other potentially infectious materials, exposure to tuberculosis, and slips, trips and falls.  This NEP also addresses workplace violence, which was not part of the 2002 NEP.

What’s most interesting about the Nursing Home NEP, especially as compared to OSHA’s other Special Emphasis Programs, is its intended heavy reliance on the General Duty Clause; i.e. the catch-all duty in the OSH Act requiring all employers to provide a workplace free from “recognized hazards that are likely to cause death or serious physical harm.”  There are no specific OSHA standards for two of the primary hazards targeted by this NEP — (1) Ergonomics; and (2) Workplace Violence — so citations related to those two hazards will have to fall under the General Duty Clause.

In determining which facilities to inspect under the Nursing Home NEP, OSHA has prepared a list of Skilled Nursing Care, Immediate Care, and Nursing and Residential Care facilities with DART rates at or above 10.0 as reported in the CY 2010 OSHA Data Initiative (some 700 sites).  Each OSHA Area Office must conduct at least three Nursing Home NEP inspections per year.  The Nursing Home NEP also continued a recent trend by mandating that all approved State Plan OSHA Programs also adopt the NEP, and also conduct at least three Nursing Home NEP inspections per year.

Although the scope of this NEP covers only nursing homes and residential care facilities, practically speaking, it will have a major impact on the healthcare industry as a whole.  The reason is, a major component of the NEPs launched under the current OSHA leadership has been extensive training of OSHA’s compliance safety and health officers (CSHOs), who conduct the NEP inspections.  The training related to the Nursing Home NEP will arm CSHOs all over the country with a better understanding of the OSHA standards and General Duty Clause application to the supposed hazards common in nursing homes.  Those hazards happen also to be the same hazards that impact hospitals, doctors’ offices, rehab centers, and other healthcare workplaces.  The same broad impact was seen in the chemical industry after OSHA developed its Petroleum Refinery PSM NEP.  OSHA suddenly had a much larger group of CSHOs who understood the complex PSM Standard, and knew what to look for in PSM covered processes.  Even before the Chemical Facilities PSM NEP launched, chemical manufacturers were already seeing a surge in PSM enforcement because of the new army of PSM-knowledgeable CSHOs borne out of the Refinery NEP.  The healthcare industry will see the same surge.

To prepare for increased scrutiny under the Nursing Home NEP, industry stakeholders should evaluate and enhance their internal programs and policies as they relate to the hazards we know OSHA will be targeting.  A good starting point would be cross-check the programs against the NEP Directive and the referenced Guidance Documents within, such as OSHA’s:

  1. Guidelines for Nursing Homes: Ergonomics for the Prevention of Musculoskeletal Disorders;
  2. Directive on Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents;
  3. Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens Standard; and
  4. Nursing Home eTool.

Likewise, employers should be sure they are prepared to properly manage an OSHA inspection.  Epstein Becker Green’s national OSHA Group prepared an OSHA Inspection Checklist to help guide employers through the steps necessary to prepare in advance for a visit from OSHA, and to effectively manage an inspection once it begins.

By Eric J. Conn and Casey M. Cosentino

Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule (“HazCom”), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or “HCS”).  The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s”) for all chemicals manufactured or imported in the United States.  According to Assistant Secretary Michaels, “OSHA’s 1983 Hazard Communication Standard gave workers the right to know . . . this update will give them the right to understand.”

In preparing to implement the new HazCom Standard, below is a list of 10 important things employers need to know about the final rule.  Look out for our article coming soon in EHS Today Magazine for a more detailed review of these 10 issues.

 

  1.  Hazard Classification:  The new HCS has specific criteria for classifying health and physical hazards into a hazard class and hazard category.  The hazard class indicates the nature of hazard (e.g. flammability) and the hazard category is the degree of severity within each hazard class (e.g. four levels of flammability).
  2. Mixtures:  Evaluating health hazards of mixtures is based on data for the mixture as a whole.  If data on the mixture as a whole is not available, importers and manufacturers may extrapolate from data on ingredients and similar mixtures.
  3. New Label Requirements:  For each hazard class and category, chemical manufacturers and importers are required to provide common signal words, pictograms with red borders, hazard statements and precautionary statements.  Product identifiers and supplier information are also required.
  4. Safety Data Sheets: SDS’s replace MSDS’s, and the new Standard requires a standardized 16-section format for all SDSs to provide a consistent sequence for organizing the information.
  5. Non-Mandatory Threshold Limit Values in SDSs:  Employers are required to include in SDS’s the non-mandatory threshold limit values (TLV’s) developed by the American Conference of Governmental Industrial Hygienists, in addition to OSHA’s mandatory permissible exposure limits (“PEL’s”).
  6.  Information and Training:  Employers are required to train employees on the new label elements (e.g. signal words, pictograms, and hazard statements) and SDS format by December 1, 2013.
  7. Other Effective Dates:  The table below shows the rolling effective dates of the new Standard:
  8. Hazards Not Otherwise Classified: Hazards covered under the old HazCom Standard but not addressed by GHS are covered under a separate category called “Hazards Not Otherwise Classified” (“HNOC”).  HNOC’s need only be disclosed on the SDS and not on labels.  Notably, pyrophoric gases, simple asphyxiants, and combustible dust are not classified under the HNOC category.  Rather, these chemicals are addressed individually in the new Standard. 
  9. No Preemption of State Tort Laws:  The new HazCom Standard does not preempt state tort laws, which means that it will not limit personal injury lawsuits regarding chemical exposures, inadequate warnings on labels, and/or failure to warn.
  10. Combustible Dust:  The final rule added combustible dust to the definition of “hazardous chemicals,” and thus, combustible dust hazards must be addressed on labels and SDSs.  Although the new HazCom Standard expressly states that combustible dust is covered, OSHA failed to define combustible dust, which will likely create substantial confusion and uncertainty for employers.