Special Emphasis Program

On January 13, 2017, the Occupational Safety and Health Administration (“OSHA”) issued non-binding recommendations to aid employers with creating new or improving existing workplace anti-retaliation programs.  OSHA’s recommendations apply to all public and private employers that are subject to the 22 whistleblower protection statutes that OSHA enforces.[1]

Under the various federal whistleblowing protection statutes, employers are prohibited from retaliating against employees who report or raise concerns about workplace health and safety issues. OSHA encourages employers to create and maintain an effective workplace anti-retaliation program so they will not only comply with federal whistleblowing protection laws, but also create a workplace culture that prevents retaliation, improves employee morale and protects employers and members of the public from harm.

According to OSHA, an effective anti-retaliation program must: (1) prevent retaliation and address retaliation complaints; and (2) receive and respond appropriately to employee compliance concerns. OSHA cautions employers that an anti-retaliation program must not discourage or prevent employees from exercising their rights to report violations or file complaints about hazardous workplace conditions or potential violations of the law with OSHA or any other government agency.

OSHA recommends that an effective anti-retaliation program should include the following five key components:

  • Management leadership, commitment, and accountability
  • System for listening to and resolving employees’ safety and compliance concerns
  • System for receiving and responding to reports of retaliation
  • Anti-retaliation training for employees and managers
  • Program oversight

OSHA discusses each of these five key components in detail and offers helpful tips on how to incorporate them into an anti-retaliation program. Employers would be wise to compare their anti-retaliation program with OSHA’s recommendations to determine if any adjustments should be made to their program.

[1] The 22 whistleblowing protection statutes that OSHA enforces are listed at the end of the guidance.

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.

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.

On Tuesday, December 3, 2013, 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 the OSHA enforcement landscape related to work on top of rolling stock (specifically railcars) at grain elevator facilities.  The webinar, including a Q&A session, was recorded, and the Grain Journal has made the recording available online.  The recording includes an audio broadcast with a video of the accompanying PowerPoint presentation.

Here is a link to the recording of the Railcar Fall Protection webinar and a link to the slides from the briefing.

The December 3rd webinar focused on the complex circumstances that require employees to work on top of railcars at grain elevators, and how OSHA has historically and is presently addressing those circumstances through enforcement.  Whether it’s prepping cars down track away from the elevator, helping to guide a load out spout into a railcar, or allowing state or federal grain inspectors access to railcars for stowage inspections and sampling, there are numerous work activities that require employees to stand on and walk between the tops of railcars. With potentially miles of track where work may need to be done on top of the railcars, there often is no feasible way to provide anchor points to which employees can tie off fall protection over the tracks.  To complicate matters more, OSHA’s requirements regarding Railcar Fall Protection are among the most confusing and inconsistently enforced.  The webinar covered:

  • The history of OSHA enforcement as it relates to rolling stock fall protection, from the 1996 “Miles Memo” to the most recent court decisions upholding the Miles Memo;
  • OSHA’s active enforcement agenda that includes a targeting of railcar fall protection issues in the grain industry;
  • OSHA’s ongoing Walking & Working Surfaces rulemaking activity, which may introduce new railcar fall protection requirements; and
  • Recommendations for how best to avoid OSHA citations while performing work on railcars.

This was the second in a series of OSHA law related webinars Mr. Conn will be delivering for the grain industry in conjunction with 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.”  Here is a link to the OSHA / Sweep Auger webinar recording.

By Alka N. Ramchandani and Michael D. Thompson

In recent years, Cal-OSHA has taken an aggressive stance against exposing employees to potential heat illness, often citing employers and proposing significant penalties for failing to provide to employees who work in high heat conditions with adequate drinking water, shade, training, and/or cool-down periods.  Furthermore, as noted by the California Supreme Court in Brinker v. Superior Court, monetary remedies for the denial of meal and rest breaks “engendered a wave of wage and hour class action litigation” when added to the California Labor Code more than a decade ago.

The California Legislature has brought these two trends together by  amending California Labor Code Section 226.7 to include penalties for employers’ failing to provide “Cool Down Recovery Periods” (“CDRPs”) to prevent heat exhaustion or stroke.  The requirement to provide CDRPs kicks in January 1, 2014, after which California employers will be required to pay a wage premium for failing to provide CDRPs to employees.  This premium pay is akin to the premium pay already required for violations of California’s meal period and rest break laws.  The amendment is sure to trigger substantial litigation in California, and cross over into Cal/OSHA enforcement as well.

California’s Heat Illness Prevention Statute

California employers have long been aware of California’s Heat Illness Prevention statute, Title 8 Section 3395(d), which obligates employers to provide training and access to shade and adequate drinking water for employees who work outdoors in high heat conditions.  Pursuant to the Heat Illness statute, employers have also been required to maintain one or more shaded areas, with either open-air ventilation, forced ventilation, or forced cooling, and employers are required to allow employee access and encourage employees to access these shaded or cooled areas for cool down periods of no less than five minutes or as employees feel the need to do so.  Historical Cal-OSHA Board decisions and Standard Board committee notes have refused to characterize these cool down periods as work-free breaks; i.e., employers may require employees to continue working during periods when they are in shade or air conditioned locations.

Although heat illness has been an enforcement focus across the country, Cal-OSHA is the only OSHA scheme that has its own Heat Illness specific standard.  While federal OSHA has increased its use of the General Duty Clause to cite heat illness issues, Cal-OSHA has led the way in this enforcement space.

California Labor Code Section 226.7

Pursuant to California Labor Code section 226.7, employers are already required to pay a penalty of one hour of pay for any failure to provide a non-exempt employee with a meal period and an additional hour of pay for any failure to provide a non-exempt employee with a rest break.  This law has produced numerous class action lawsuits throughout California.  Under the recent CDRP amendment, any failure to provide a cool down recovery period will obligate the employer to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that a recovery period is not provided.  Employers now face more than just serious citations under Section 3395(d), but also cited or sued by employees (or classes of employees) for failure to provide CDRPs pursuant to California Labor Code Section 226.7.

Pursuant to this statute, California employers have suffered through a barrage of wage and hour single plaintiff and class action lawsuits related to California’s meal and rest break requirements under Section 226.7.  This recent history has shown that compliance with these work-free periods is difficult, and demonstrating compliance is even more so.  More importantly, the potential penalties and civil judgments are extremely high.

The Amended Statute

On October 10, 2013, that changed.  The California Legislature joined Cal-OSHA’s cause and signed a new bill into effect amending California Labor Code Section 226.7 to include penalties for failure to provide CDRPs.  Section 226.7 provides in pertinent part:

If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided. Continue Reading New California Law Requires Employers to Provide “Cool-Down Recovery Periods”

On Tuesday, December 3, 2013 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 focused on OSHA’s enforcement landscape as it relates to work on top of rolling stock (specifically railcars) at grain elevator facilities.  This is the second in a series of OSHA law related webinars for the grain industry in conjunction with Grain Journal.

Whether it’s prepping cars down track away from the elevator, helping to guide a load out spout into a railcar, or allowing state or federal grain inspectors access to railcars for stowage inspections and sampling, there are numerous work activities
that require employees to stand on and walk between the tops of railcars.  With potentially miles of track where work may need to be done on top of the railcars, there often is no feasible way to provide anchor points to which employees can tie off fall protection over the tracks.

To complicate matters more, OSHA’s requirements regarding Railcar Fall Protection are among the most confusing and inconsistently enforced.  So what does the law require and how is OSHA treating this issue from an enforcement standpoint?  Get the answers to these questions and more during this webinar.  The webinar will:

  • Describe the history of OSHA enforcement as it relates to rolling stock fall protection, from the 1996 “Miles Memo” to the most recent court decisions upholding the Miles Memo;
  • Review OSHA’s active enforcement agenda that includes a targeting of railcar fall protection issues in the grain industry;
  • Discuss OSHA’s ongoing Walking & Working Surfaces rulemaking activity, which may introduce new railcar fall protection requirements; and
  • Forecast where we think OSHA is heading next, and what that means for your operations.

This is an audio broadcast with a live powerpoint presentation.  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.

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.

On Sept. 4, in conjunction with the Grain Journal MagazineEric J. Conn, Head of the national OSHA Practice Group at Epstein Becker & Green, delivered a webinar briefing entitled “New OSHA Sweep Auger Enforcement Policies… How They Will Affect You.”  The 120-minute webinar, including 45+ minutes of Q&A, was recorded, and the Grain Journal has made the recording available online.  Here is a link to the OSHA / Sweep Auger webinar recording.

The Sweep Auger webinar followed an article recently published in the July/August edition of Grain & Feed Milling Technology Magazine entitled “Sweeping Changes to OSHA’s Sweep Auger Enforcement,” which detailed the roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers, and explaining OSHA’s current enforcement policy that provides clarity as to the conditions that OSHA considers to be acceptable for that work.

The September 4th webinar expanded on that article, and provided a review of OSHA’s current enforcement policies around work inside grain bins with energized sweep augers, and how we got there.  The webinar covered:

  • A general review of OSHA enforcement in the grain industry.
  • The issues in the grain industry on which OSHA is focused.
  • Data and trends from OSHA’s grain special emphasis program inspections.
  • A detailed review of OSHA’s enforcement policies related to work with sweep augers.

The Sweep Auger webinar was the first in a series of OSHA-related webinars for the grain industry that Mr. Conn will present in 2013 and 2014 in conjunction with Grain Journal.

Back in January, we posted a breaking news story here on the OSHA Law Update blog about a major settlement of an OSHA enforcement action renewing the grain industry’s right to have employees work inside grain bins with energized sweep augers under certain specified conditions — aka, Ten Sweep Auger Safety Principles.

Since the settlement became a final order of the OSH Review Commission in January, federal OSHA’s national office in Washington, DC issued a May 3, 2013 Enforcement Memorandum to all of the Agency’s Regional Offices that memorialized the terms of the settlement and turned them into a national enforcement policy.  Specifically, the Enforcement Memo clarified what engineering and work practice controls to eliminate or mitigate the danger to employees from the moving parts of a sweep auger that are acceptable to OSHA to allow employees to work inside the bin with the auger while it is operating.

Grain and Feed Milling Technology ran a featured article in the July/August 2013 edition of its online journal, authored by Eric J. Conn, the Head of Epstein Becker & Green’s national OSHA Practice Group, detailing the roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers, and explaining the current enforcement policy, which does provide real clarity as to the conditions that OSHA considers to be acceptable for that work.

Here is a link to the full article in Grain and Feed Milling Technology Magazine.

By Eric J. Conn, Head of Epstein Becker & Green’s OSHA Practice Group

OSHA recently announced a campaign to raise awareness about the hazards likely to cause musculoskeletal disorders (MSDs) among health care workers responsible for patient care.  Common MSDs suffered in the patient care industry include sprains, strains, soft tissue and back injuries.  These injuries are due in large part to over exertion related to manual patient handling activities, often involving heavy lifting associated with transferring and repositioning patients and working in awkward positions.

“The best control for MSDs is an effective prevention program,” said MaryAnn Garrahan, OSHA’s Regional Administrator in Philadelphia. “[OSHA’s] goal is to assist nursing homes and long-term care facilities in promoting effective processes to prevent injuries.”

As part of the campaign, OSHA will provide 2,500 employers, unions and associations in the patient care industry in Delaware, Pennsylvania, West Virginia and the District of Columbia with information about methods used to control hazards, such as lifting excessive weight during patient transfers and handling.  OSHA will also provide information about how employers can include a zero-lift program, which minimizes direct patient lifting by using specialized lifting equipment and transfer tools.  Here is a resource regarding Safe Patient Handling from OSHA’s website.

Employers in the healthcare industries should be on high alert, because whenever OSHA provides information about hazards it believes are present, a focus on enforcement is soon to follow.  This is particularly true when it comes to hazards for which OSHA has no specific standards or regulations, like ergonomics.  In these circumstances, OSHA is limited in its enforcement to use of Sec. 5(a)(1) of the OSH Act – the General Duty Clause.  The General Duty Clause is used by OSHA to issue citations in the absence of a specific standard, in situations where employers have not taken steps to address “recognized serious hazards.”  Efforts like OSHA’s present campaign to advise healthcare employers about hazards in their workplaces, is OSHA’s way of making you “recognize” the hazard, so the Agency can more easily prove General Duty Clause violations.

Of course, there are plenty of other reasons that healthcare employers should take note of the rate of MSD cases in patient care work.  Continue Reading OSHA Launches Ergonomics Campaign in Healthcare Industries