OSHA Law Update A Hazard Communication

Tag Archives: OSHA

Court Refuses to Dismiss Challenge to OSHA Practice Allowing Unions to Accompany OSHA Workplace Investigations

A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation Letter (the “Letter”), which sets forth the agency’s position that an employee of a union that does not represent the workers … Continue Reading

Looking to Create or Enhance A Workplace Anti-Retaliation Program? OSHA’s Recommended Practices

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 … Continue Reading

OSHA Amends Its Rule Requiring Employers to Keep and Maintain Records of Recordable Injuries and Illnesses for Five Years

On December 19, 2016, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a final rule amending its record keeping regulations, located at 29 C.F.R. Part 1904. The Amendment clarifies that a covered employer has an on-going obligation to create and maintain accurate records of recordable work-place injuries and illnesses. It did so in response to the decision in AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012).

The Occupational Safety and Health Act (“Act”) requires covered employers to create and preserve records of certain workplace injuries and illnesses that are prescribed by the … Continue Reading

Federal Guidance for Employers and Workers on Exposure to Zika Virus

The Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health issued interim guidance on April 10, 2016, for protecting outdoor workers who may be exposed on the job to mosquitos and healthcare and laboratory workers exposed on the job to body fluids of individuals infected with Zika virus.  Although the guidance is not a standard or regulation, employers should be mindful that OSHA can always issue citations under the General Duty Clause (OSHA’s catch all provision requiring all employers to provide employees with safe workplaces and safe work) should the agency find that an … Continue Reading

Lessons Learned from the First Year of OSHA’s Severe Injury Reporting Program

On January 1, 2015, OSHA rolled out its Severe Injury Reporting Program, requiring all employers to report to OSHA within 24 hours any work-related amputations, inpatient hospitalizations, or loss of an eye.  The long standing requirement to report work-related fatalities to OSHA within 8 hours also remains in place.

According to a report issued by OSHA on January 17, 2016 evaluating the impact of the new reporting requirements, before the requirements were established, compliance officers were often dispatched to inspect a fatality in the workplace, only to discover a history of serious injuries had taken place there in the past, … Continue Reading

OSHA Quietly Changes the Group of Small Businesses Exempt from Inspections

Valerie Butera

In a recently updated directive to Regional Administrators and State Plan Designees from Dr. David Michaels, Assistant Secretary of Labor for OSHA, the categories of small businesses exempt from programmed health and safety inspections changed.

This exemption applies to workplaces with 10 or fewer workers who perform work in industries OSHA deems low hazard.  OSHA identifies low hazard industries by studying the most recent results of mandatory surveys sent to employers in countless industries by the Bureau of Labor Statistics which collect information about how often employees were unable to perform their normal job duties because of workplace … Continue Reading

OSHA Assures Employers That Rapid Response Investigation Reports Will Not Be Used in Issuing Citations

Since OSHA’s revised fatality and severe injury reporting rule went into effect on January 1, 2015 (see related story), employers have been deeply concerned that the agency would use information contained in Rapid Response Investigation Reports (RRIs) — required by OSHA in response to approximately 50% of the reports made this year — as the basis for issuing citations and fines.  This concern stems from the fact that when OSHA finds an employer’s RRI unsatisfactory, such as where the employer merely blames the victim or fails to provide what the agency determines is an adequate plan to address identified hazards, … Continue Reading

Dollar Tree Resolves Multiple OSHA Citations in Burdensome Corporate-Wide Settlement Agreement: Is This a Sign of Things to Come?

OSHA has employed many creative strategies to maximize its enforcement efforts during the Obama administration.  One such tactic involves scrutinizing employers with multiple worksites (retailers are a particularly easy target), sending compliance officers to inspect one of the worksites, issuing citations, and then visiting the employer’s other worksites, identifying the same problems found in the first worksite inspected, and issuing repeat citations to the employer based on the citation issued at the original worksite.  This approach gives OSHA significant bang for its buck, not only creating the opportunity to issue more citations by inspecting multiple facilities, but also making it … Continue Reading

OSHA Targets the Health Care and Nursing Care Industries: Featured on Employment Law This Week

In one of the news stories on Employment Law This Week – Epstein Becker Green’s new video program – EBG attorney George Whipple details OSHA’s recently increased focus on the health care and nursing care industries. The agency’s fines have historically been very low, but recently OSHA cited medical patient transportation company LifeFleet for several violations totaling more than $235,000. See below to view the episode or read more about how to stay compliant and avoid heavy fines.

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OSHA Means Business in Targeting the Health Care and Nursing Care Industries

The Occupational Safety and Health Administration (“OSHA”) recently intensified its scrutiny of the health care and nursing care industries. On June 25, 2015, the agency announced a new enforcement initiative targeting inpatient health care and nursing care facilities. But this increased scrutiny of the health care and nursing care industries does not end there—OSHA is spreading its enforcement reach to other types of health care entities.

Recently, OSHA cited LifeFleet LLC, an Ohio medical patient transportation company, for training shortfalls and bloodborne pathogen violations. OSHA alleged multiple violations, including several costly willful violations, and is seeking fines totaling nearly $236,000—a … Continue Reading

OSHA’s Response to Compliance with the New Reporting Rules and What it Means to Employers

Although OSHA’s new reporting rule has been in effect for almost seven months now, it has caused some major changes in the way that OSHA operates.  Since the new reporting rule went into effect on January 1, 2015, OSHA has received more than 5,000 reports of work-related deaths, inpatient hospitalizations, amputations, and losses of an eye.  As OSHA anticipated, compliance with the rule has focused the agency’s attention on industries and hazards that it had not focused on before.  For example, because of the unexpectedly high number of reports of amputations from supermarkets, OSHA issued a safety Fact Sheet last … Continue Reading

OSHA’s Appropriations Efforts Signal Increased Enforcement and Higher Penalties in 2015

President Obama’s recent budget proposal to Congress includes a proposed $592.1 million budget for OSHA this fiscal year — a 7 percent increase from fiscal 2015.  Although gaining approval of the proposal will surely be an uphill battle, which may be insurmountable in light of opposition from Republican lawmakers who oversee the appropriations process, the content of OSHA’s budget justification provides strong signals of its agenda for the coming year.

First, OSHA seeks to add 90 full-time positions to the agency for fiscal 2016.  Sixty of the new positions would be assigned to enforcement activities – forty of the new … Continue Reading

Are Your Drivers Following OSHA’s Best Practices for Winter Driving?

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 … Continue Reading

OSHA Announces Its Regulatory Priorities for 2015

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
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Complimentary Webinar – OSHA Forecast: Developments To Watch in 2015 and Beyond

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
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Practical Strategies for Addressing Employee Concerns About Ebola in the Workplace

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 … Continue Reading

OSHA and NLRB Create Loophole for Stale Safety Whistleblower Claims

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 … Continue Reading

Webinar Recording — OSHA’s Severe Violator Enforcement Program

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 … Continue Reading

Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance

James S. Frank, a Member in the Health Care and Life Sciences and Labor and Employment practices, and Serra J. Schlanger, an Associate in the Health Care and Life Sciences practice, co-authored an article for the American Health Lawyers Association (AHLA) entitled “Hospitals’ Heavy Lifting:  Understanding OSHA’s New Hospital Worker and Patient Safety Guidance.”

The article, published in AHLA’s Spring 2014 Labor & Employment publication, summarizes OSHA’s new web-based “Worker Safety in Hospitals” guidance, explains how the guidance relates to OSHA’s existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as … Continue Reading

OSHA Head Urges Update to Whistleblower Provisions

By John F. Fullerton

On April 29, 2014, the Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate Education, Labor and Pensions Subcommittee on Employee and Workplace Safety to seek a number of changes to the whistleblower protection provisions of Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) so it would track provisions of other, more recent whistleblower protection laws.  Here is a link to Dr. Michael’s testimony.

The provisions at issue are intended to protect employees from retaliation by their employers for bringing to OSHA’s attention potential violations by the employers … Continue Reading

Webinar Recording — OSHA’s Temporary Worker Initiative

On April 8, 2014, Epstein Becker Green’s national OSHA Practice Group presented a webinar regarding OSHA’s Temporary Worker Initiative. The briefing addressed enforcement issues and data related to the temporary work relationship, and recommendations and strategies for managing safety and health issues related to the temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use … Continue Reading

OSHA Enforcement of Fall Protection on Rolling Stock — A BioFuels Journal Article

The national OSHA Practice Group at Epstein Becker Green co-authored an article in BioFuels Journal entitled “Railcar Fall Protection: What OSHA Requires from Ethanol Plant Operators.”  Although the article principally addresses OSHA’s enforcement landscape related to work on top of railcars at ethanol plants, the analysis carries over to work on top of any rolling stock (e.g., tanker trucks, railcars, rigs, etc.) in any industry.

Here is an excerpt from the article:

Addressing fall hazards is always among the OSHA’s top enforcement priorities.  Indeed, OSHA’s fall protection standards continue to rank among the most frequently cited year after year.  The

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OSHA to Target Auto Supply Manufacturers

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

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OSHA Forecast – 5 Important OSHA Issues to Monitor in 2014

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 … Continue Reading