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.”

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

On Tuesday, February 11th, 2014, in conjunction with the Grain Journal, the national OSHA Practice Group at Epstein Becker & Green delivered a webinar focused on “Preparing For and Managing an OSHA Inspection at a Grain Handling Facility.”  The 90-minute webinar, including a Q&A session, was recorded, and the Grain Journal has made the recording available online.

While this briefing touched on some unique enforcement issues at grain handling facilities, the background information about OSHA inspections and the strategies and recommendations are applicable across all industries.

The February 11th webinar about preparing for and managing an OSHA inspection was particularly important now, because OSHA has increased enforcement to levels never seen before, from huge increases in the numbers of inspections, civil penalties, and citations characterized as “willful” or “repeat,” to more criminal referrals.  OSHA has also introduced more aggressive strategies during inspections, creating a minefield for employers across all industries.  The grain industry in particular, however, has been under a unique level of scrutiny.  The consequences of an employer in the grain industry being caught unprepared for an OSHA inspection, therefore, are more dire now than ever.

Topics covered in the webinar:

  • Employers’ Goals for an OSHA inspection
  • Steps employers should take before OSHA begins an inspection
  • Employers’ and employees’ workplace inspection rights
  • Stages of OSHA inspections, with tips to manage each stage.

The recording includes an audio broadcast with a video of the accompanying PowerPoint presentation.  Here is a link to the recording of the Preparing for and Managing an OSHA Inspection Webinar.

This was the third OSHA law briefing in a series of webinars for the grain industry in conjunction with the 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,” and the second, delivered in December 2013, was entitled “Railcar Fall Protection: What OSHA Requires of Grain Elevator Operators.”

Epstein Becker & Green is proud to report that Corporate INTL Magazine has named our national OSHA Practice Group based out of Washington, DC as the “Occupational Health & Safety Law Firm of the Year” in its 2014 Global Awards.

Here is a press release that EBG put out about the award.

The award was given after Corporate INTL’s research department conducted extensive reviews, drew insight from business leaders, advisers and investors throughout the world, and took feedback over the past year from the readership of Corporate INTL Magazine (over 70,000 company leaders and advisers), law firm partners, in-house counsel, CFO’s, CEO’s and Corporate Directors from all over the world.

According to Corporate INTL:

The award praises the work of firms who have been successful over the past 12 months in portraying excellent know-how and business savvy. Firms are selected based on independent research the magazine conducts as well as feedback from its editorial team. Selection is based on service type, service range, business type, geographical location, how the business operates, and the expertise each team can offer to companies that either trade or may want to trade in their chosen jurisdiction.  Corporate Intl is at the forefront of connecting corporate leaders to the world’s top lawyers, consultants and accountants since its founding in 2005.

From all of us in the national OSHA Practice Group at Epstein Becker & Green to all of you, happy holidays and happy New Year.  We wish you a holiday season filled with joy, and a safe and happy 2014.

Thank you all for continuing to take time out of your busy days to read our articles and posts here on the OSHA Law Update blog.  As we celebrated the 2nd Anniversary of the OSHA Law Update blog on December 20th, another great year of bringing you fresh perspectives on important OSHA law topics, we had to stop and thank you for all of your positive feedback, comments, and questions, which give us the energy and enthusiasm to keep the OSHA Law Update blog fresh (no easy task).

Please contact us if you have questions about any of the content on the blog, ideas for other topics we should be covering, and of course, if there is ever anything our national OSHA Practice Group at Epstein Becker & Green can do to help you with OSHA law issues.

Employment Law360 ran an article last week about the addition of Kathryn M. McMahon, a prominent Washington, D.C. OSHA and environmental attorney, to the national OSHA Practice Group at Epstein Becker & Green, a leading labor & employment and health law firm.  Ms. McMahon focuses her practice in the areas of occupational safety and health (OSHA) law as well as environmental law.   She has extensive experience and expertise in handling complex OSHA rulemakings, and regularly assists clients in accident and fatality investigations, workplace hazard assessments, and a broad range of enforcement-related matters.  She will reside in the firm’s Washington, D.C., office.

The Law360 article (entitled “Epstein Becker Snares OSHA Pro From Kelley Drye“) reported that:

“Kathryn McMahon comes to Epstein Becker after heading up the Occupational Safety and Health Administration practice at Kelley Drye.  She said that the experience and skill of Epstein Becker’s OSHA group, led by Eric J. Conn, provided a great opportunity to grow her practice: ‘It’s an incredible practice,’ McMahon told Law360.  ‘It is the go-to firm right now in the OSHA world, and I think, with the team we have here, we’re going to be the top OSHA practice in the country, with extensive, in-depth experience and know-how in all aspects of OSHA law, from the routine or complaint-driven OSHA inspections to safety whistleblower complaints and OSH Act criminal investigations.’  McMahon’s practice strikes a balance between offering regulatory guidance and helping with various enforcement issues.  In the regulatory arena, McMahon has aided companies in various sectors, tackling hazard communication, ergonomics, hazardous waste operations and emergency response, process safety management and machine-guarding matters, among others.”

EBG also announced the news of its new OSHA Partner in a press release that talked about the value Ms. McMahon’s experience and expertise will provide to the firm’s clients.  The Chair of EBG’s National Labor Steering Committee, David W. Garland, described the Firm’s strategic initiative “to continue to add to our OSHA capabilities and grow in this area, as it is a vital part of our Labor and Employment practice.”  In welcoming Ms. McMahon to the firm, the Head of EBG’s OSHA Practice Group, Eric J. Conn, said: “Our national OSHA Practice Group continues to represent employers and associations in the most complex, high-profile OSHA matters of the day, so adding to our team an attorney of Kate’s caliber, experience, and record of extraordinary success for her clients will be invaluable. Kate is known nationally for her role as the lead counsel for industry on the last two major OSHA rulemaking efforts. As OSHA rekindles its efforts to engage in new impactful rulemaking and standard setting, from the Injury & Illness Prevention Plan Rule to the new proposed Silica Standard, we are even better positioned to help employers in this area with Kate now a part of our team.”

In describing her practice philosophy, Ms. McMahon explained:

“Whether the issue is the appropriate worker exposure limit to establish in an occupational health standard, the right safety systems to implement to address workplace accidents, or the acceptable abatement and other terms to resolve an enforcement action, approaching the problem with an eye towards an outcome that protects employees without impinging on an employer’s ability to operate, make a product, or serve customers is a strategy I have employed with great success for my clients.  There is often common ground for collaborative approaches that work well for employers while ensuring the safety of my clients’ employees.  Finding those solutions leads to successful outcomes for everyone.”

In addition to her OSHA work, Ms. McMahon has broad experience in the environmental area, both in the regulatory and enforcement contexts. For two decades, she has provided clients compliance counseling under all major environmental statues as well as representing them in numerous Superfund contribution actions and PRP allocations, Department of Justice enforcement matters, and myriad other federal and state administrative actions.

Check out the full press release, the Employment Law360 article, and Ms. McMahon’s bio.

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.

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.

Last week, Washington Legal Foundation published a Legal Backgrounder regarding OSHA’s Severe Violator Enforcement Program (“SVEP”) authored by Eric J. Conn, Head of Epstein Becker & Green’s national OSHA Practice Group.  The Legal Backgrounder expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program.

The article focuses on a White Paper issued by OSHA this Spring, in which OSHA analyzes the first 18 months of its new, controversial enforcement program.  The White Paper concludes that the SVEP is “off to a strong start” and is “already meeting certain key goals,” including:

  1. Identifying recalcitrant employers whose violations of the OSH Act “demonstrate indifference to the health and safety of their employees.”
  2. Effectively guiding OSHA’s enforcement resources toward those employers by “targeting high-emphasis hazards, facilitating inspections across multiple worksites, and by providing Regional and State Plan offices with a nationwide referral procedure.”
  3. Demonstrating its effectiveness by creating a “significant increase in follow-up inspections and enhanced settlements.”

Despite OSHA’s claims, careful scrutiny of the data available regarding the SVEP casts doubt on the Program’s effectiveness and reveals several glaring problems with how the SVEP is being administered.  Most notably, the Severe Violator Enforcement Program:

  1. Disproportionately targets small employers with enforcement rather than compliance assistance;
  2. Provokes more than four times as many legal challenges to the underlying citations as compared to the average OSHA enforcement action;
  3. Encounters significant obstacles in the execution of follow-up inspections of SVEP-qualified employers; and
  4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted (i.e., the Program is not capturing recalcitrant employers)

Check out the full Legal Backgrounder regarding OSHA’s SVEP here.

By Amanda R. Strainis-Walker and Eric J. Conn

The roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers has taken another major turn.  After decades of employees working inside grain bins with sweep augers, a string of recent, somewhat confusing, Interpretation Letters issued by OSHA effectively banned the practice outright.  Now, a groundbreaking settlement of an OSHA case against an Illinois grain company became a Final Order of the OSH Review Commission in January, and that settlement renewed the industry’s right to work inside grain bins with energized sweep augers, and provided real clarity as to the conditions that OSHA considers to be acceptable for that work.

Sweep Augers

A sweep auger is a mechanism that attaches to a pivot point in the center of a flat-bottom grain bin, and then travels at very slow speeds in a circle around the bin, pulling grain from the perimeter of the bin towards a floor sump in the center of the bin by a helical screw blade called a flighting, where the grain exits to another conveying system.  Generally, one or more workers will be positioned inside the bin behind the sweep auger to make regular adjustments to the auger to keep it advancing on track, and also to manually sweep grain not captured by the auger.

By design, a sweep auger is typically guarded from accidental contact on the top and backside, but it cannot be guarded on the front, or the flighting of the auger would not be able to contact the grain, and therefore, would not convey grain towards the center sump.  In other words, the basic functionality of a sweep auger would be nullified if it were guarded on all sides.

The Grain Standard

The legal landscape about the use of sweep augers with employees inside grain bins has had many throughout the Ag Industry confused for years.  Part of the confusion dates back to the original implementation of the Grain Handling Standard (29 C.F.R. § 1910.272).   The final Grain Standard, which was published in 1987, did not include any provision to address the use of sweep augers or the conditions in which an employee may work inside a grain bin with an energized sweep auger.  The final rule did, however, include a general requirement about equipment inside grain bins at 1910.272(g)(1)(ii):

“All mechanical, electrical, hydraulic, and pneumatic equipment which presents a danger to employees inside grain storage structures shall be deenergized and shall be disconnected, locked-out and tagged, blocked-off, or otherwise prevented from operating by other equally effective means or methods.”

Varying informal interpretations by OSHA about the language in the Standard: “which presents a danger” and “other equally effective means or methods,” resulted in inconsistent enforcement by OSHA in connection with sweep augers over the years.  A series of formal OSHA Interpretation Letters beginning in 2008, however, changed that landscape.

OSHA’s Sweep Auger Interpretation Letters

Around the same time that OSHA began to scrutinize the grain industry following a rash of engulfment incidents inside grain bins, OSHA also began to focus more attention on the issue of potential employee entanglement in the moving parts of sweep augers.  That attention was spurred in part by a letter to OSHA from an insurance agent seeking a formal interpretation of requirements related to grating/guarding on sumps inside grain bins with sweep augers.

The insurance agent’s letter described a scenario in which an employer required employees to maintain a distance of at least six feet behind a partially-guarded or unguarded sweep auger.  In a September 29, 2008 Interpretation Letter from OSHA responding to the insurance agent’s request, OSHA linked 1910.272(g)(1)(ii) to the use of sweep augers, and expressed the position that employees were prohibited from being inside grain bins with energized sweep augers unless the employer could demonstrate that appropriate protections were provided to prevent employees from exposure to the hazards of the moving machinery.  OSHA further stated that completely guarding the machine and a rope positioning system to prevent employee contact with the energized equipment (i.e., a leash for employees), would be effective methods to protect employees.  Finally, the letter opined that an administrative policy requiring employees to maintain a safe distance of six feet from partially-guarded and unguarded sweep augers was not an “otherwise equally effective means or method” that satisfies 1910.272(g)(1)(ii).

Shortly after OSHA issued the September 29, 2008 Interpretation Letter, the same insurance agent sent a second request to OSHA for further clarification, explaining that a sweep auger could not, by design, be completely guarded, and that the rope positioning system that OSHA suggested would be “extremely dangerous.”  This second letter specifically asked for OSHA’s interpretation as to whether an employee could be inside a grain bin with an energized sweep auger.  OSHA responded to this second request with another formal Interpretation Letter on Christmas Eve of 2009, with a direct “no.”  OSHA reasoned in the December 24, 2009 Interpretation Letter that if the methods proposed earlier by OSHA (i.e. guarding the operating side of the auger or putting a leash on employees) were ineffective, then the Agency was “not aware of any effective means or method that would protect a worker from the danger presented by an unguarded sweep auger operating inside a grain storage structure.” Continue Reading Breaking News: Sweeping Changes to OSHA’s Sweep Auger Enforcement