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.

By Eric J. Conn

Below is a set of important questions that we are frequently asked by clients when OSHA unexpectedly shows up at their doorsteps.  These questions and many more are also addressed in our OSHA Inspection Checklist desk reference guide.

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Scenario 1:   An OSHA Compliance Safety and Health Officer (CSHO) arrives unannounced to begin an inspection, but the employer’s representative whom the employer desires to manage the OSHA inspection is not present at the workplace.  Can the employer request that the CSHO return later or wait to start the inspection until the employer’s chosen representative is available?

Answer:  Yes, the employer can request that the CSHO return at a later time or wait a reasonable amount of time until the employer’s chosen inspection representative is available.  The OSH Act grants to employers the right to be represented during an OSHA inspection and to physically accompany an OSHA CSHO during on-site inspection activities.  The employer has the right to designate whomever it wants to fill that role, and if that person is not available at the moment OSHA arrives, but can be available in a reasonable amount of time, the employer can request that the CSHO wait or return later.

OSHA’s Field Operations Manual explains that OSHA believes waiting approximately one hour is a reasonable amount of time to delay the start of an inspection to wait for the employer’s selected representative to become available.

“When neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner, operator or management official.  The inspection shall not be delayed unreasonably to await the arrival of the employer representative. This delay should normally not exceed one hour.”

Notwithstanding OSHA’s purported one-hour rule, unless the CSHO has a warrant or other exigent circumstances exist (i.e., imminent danger in plain view), the employer can refuse to consent to the inspection until its chosen representative arrives, so OSHA  could not proceed with the inspection without obtaining a warrant, which generally takes at least a couple of days.

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Scenario 2:  OSHA explains at the Opening Conference that the inspection is in response to an employee complaint about a machine guarding hazard in the maintenance shop, but he requests that the employer’s representative grant him a general tour of the entire workplace.  Should the employer’s representative provide the CSHO with a general tour of the entire workplace?

Answer:  No, in the absence of a related special emphasis program, a warrant, or a hazard in plain view, OSHA cannot expand the scope of a complaint-based inspection beyond the location and hazard identified in the complaint without the employer’s consent.  The employer should insist that the inspection be limited to only that location.

To minimize the risk of the CSHO expanding the scope of the inspection based on his observing hazards in plain view in other locations, the employer’s representative should follow a route to the complaint location that introduces the CSHO to the least sensitive areas of the facility, even if that means walking the CSHO around the outside of the building to a different entrance closer to the location of the complaint.

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Scenario 3:  The CSHO asks to conduct an interview of a non-management employee, but the employee explains to his supervisor that he does not feel comfortable speaking to OSHA and does not want to be interviewed.  How should the employer representative respond to the employee?

Answer:  The employer representative can advise the employee that it is the employee’s choice whether or not to agree to the CSHO’s request for an interview, but also that OSHA has subpoena authority, and may compel the employee to participate in an interview if he refuses the request for a voluntary interview.  Employees’ participation in OSHA inspections is protected from employer retaliation by Section 11(c) of the OSH Act, so the employer representative may not discourage the employee from participating in the interview or from sharing any particular information during the interview, and may not take any adverse employment action on account of the employee’s decision whether to participate in the OSHA interview.

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Scenario 4:  At the conclusion of a management representative interview, the CSHO asks the management witness to review the CSHO’s interview notes and sign the notes if they appear to be accurate or to write out and sign a witness statement.  Does the management representative witness have to and/or should he agree to sign the notes or write out his own witness statement?  What about being taped or video recorded during the interview?

Answer:  OSHA has no authority to require any witness to sign any document or to prepare a written witness statement, or any form of new written document during an inspection.  Likewise, during a “voluntary” interview, witnesses may refuse to allow an interview to be video or tape recorded.  Note that OSHA can issue a subpoena that compels a witness to submit to an audio or video recorded interview.  OSHA cannot, however, compel an employee to write or sign any document even with a subpoena.

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Scenario 5:  During an inspection, OSHA issues a subpoena to your workers’ compensation insurer seeking risk assessments, loss control surveys, and other safety audits conducted of your facility.  Is the insurance company required to provide such materials?

Answer:  They are now.  A few months ago, OSHA won a key battle against an insurance company and all employers in a case involving two teens, who became engulfed in corn.  As part of OSHA’s investigation, OSHA subpoenaed records from the employer’s workers’ compensation insurer, Grinnell Mutual Reinsurance Co., seeking documents and testimony regarding working conditions observed by the insurer.  Grinnell refused to produce any documents or information, and OSHA sued the insurer in federal court.  The insurer argued that enforcing the subpoena would cause a “chilling effect” by discouraging businesses from allowing insurers to conduct safety inspections if the material could later be used against them in litigation or OSHA enforcement proceedings.  The court disagreed, finding that “[w]ith OSHA’s authority to investigate, comes the authority to require production of evidence and to obtain court enforcement of subpoenas seeking such evidence.”  See the district court’s opinion in Solis v. Grinnell Mutual Reinsurance Co.

OSHA has made it a habit of requesting from employers and third parties during workplace inspections, copies of safety audit reports from third parties (e.g., insurance companies, consultants, etc.), and using the audit reports to the detriment of employers.  OSHA uses the findings from such safety audits as a roadmap to steer their inspections, and references uncorrected audit findings as evidence:

  1. to support citations;
  2. of the required showing of employer knowledge of violative conditions; and
  3. of willfulness.

Following the Grinnell case, we know that OSHA has authority to access such audit records unless the audit was conducted under the protection of the attorney-client privilege.  In order to properly invoke the attorney-client privilege today, employers should seek the legal opinion of counsel with regard to OSHA compliance issues, and have counsel either personally conduct the audit or direct a third party consultant to provide expert, technical assistance to the attorney.  The consultant should obtain information about the employers’ programs, procedures, and physical conditions at the plant directly from the employer, rather than gathering that information independently (i.e., any physical inspection or observations should be made in conjunction with a company representative, who points out and explains operations and equipment to the third party auditor).  The audit report should be delivered to counsel, who in turn must use the report to deliver legal advice based on the technical information provided by the consultant (i.e., a memorandum to the employer describing legal compliance issues and attaching the report).

By Alexis M. Downs and Eric J. Conn

Companies that operate multiple facilities in different locations, such as national retail stores, grocery chains, manufacturers, and hotel chains, need to be aware of three new OSHA enforcement trends with enterprise-wide consequences:

  • A rise in follow-up inspections and Repeat violations at sister facilities within a corporate family;
  • OSHA’s increasing pursuit of company-wide abatement provisions in settlement agreements; and
  • OSHA’s recent requests for enterprise-wide relief from the Occupational Safety and Health Review Commission.

Follow-up Inspections and Repeat Violations:

The most significant trend impacting employers with multiple locations is OSHA’s recent fascination with Follow-up Inspections and Repeat citations.  OSHA characterizes citations as Other Than Serious (OTS), Serious, Willful, or Repeat.  The maximum penalty for OTS and Serious citations is only $7,000 per violation, but for Willful and Repeat violations, OSHA can issue penalties up to $70,000 per violation.  By actively pursuing more Repeat violations, OSHA is issuing much higher penalties.

OSHA issues “Repeat” violations when an employer has been cited in the past for a substantially similar violation (generally, a citation issued under the same standard for the same violative condition).  Until recently, Repeat violations were rarely issued because OSHA:

  1. historically treated workplaces as individual, independent establishments;
  2. limited review of employers’ OSHA records for past violations to form the basis for a Repeat to three years back; and
  3. picked inspection targets reactively (i.e., following incidents and complaints), so OSHA was less likely to revisit a workplace within a few years.

Each of these factors has changed under the Obama Administration’s OSHA.  Today, OSHA:

  1. treats related workplaces within a corporate family as one workplace for purposes of Repeat violations;
  2. looks back five years for past violations to form the basis for Repeats; and
  3. proactively selects inspection targets with past violations (at the same or related facilities within a corporate family), with the goal of finding and citing Repeat violations.

As a result of OSHA’s new approach to Repeat violations, in the past four years, OSHA has increased the number of Willful and Repeat violations it issues by more than 215%.  This heavy use of follow-up inspections and Repeat violations is how OSHA has also tripled its number of significant enforcement actions (cases over $100,000) over the past two years.

This practice has had serious consequences for national corporations, by putting them on the hook for Repeat violations throughout the country by virtue of a single citation at just one location.  A company’s failure to investigate and correct the same safety hazard at each of its stores or locations around the country now leads to Repeat violations and substantial penalties, even for the first citation ever issued at another location.

Corporate Settlement Agreements:

Another method OSHA has employed to amplify the impact of a single enforcement action beyond just one location is OSHA’s new practice of seeking corporate-wide abatement in settlement agreements.  Abatement is the act of correcting a safety or health hazard that was identified and cited by OSHA during an inspection.  Because OSHA inspects workplaces, and citations relate only to conditions at the single workplace subject to the inspection, abatement is limited to the conditions identified at that single workplace.

While the law limits the abatement that OSHA can demand in a citation to a single location, in a settlement, parties can make commitments beyond what OSHA can require in a citation.  Consistent with that, in June of last year, OSHA issued a Compliance Directive regarding OSHA’s use of Corporate Settlement Agreements (“CSAs”), with the intent of expanding abatement beyond a single location.  The Directive explains that OSHA may include provisions in settlement agreements to expand abatement requirements to all of a company’s locations rather than just the location where the alleged violation was found and cited.

The Directive states that CSAs allow OSHA to use its resources “more efficiently by avoiding numerous inspections of like corporate locations,” resulting in “more timely reduction and uniform abatement of serious hazards at multiple worksites.”

In some instances, OSHA policy now mandates that Area Offices at least consider incorporating corporate-wide abatement requirements into settlement agreements.  For example, OSHA’s Directive regarding its Severe Violator Enforcement Program requires Area Offices to consider including in every settlement: (1) enterprise-wide abatement requirements; (2) provisions requiring employers to identify all of its current or future jobsites; and (3) consent to inspections at other locations (i.e., waiving OSHA’s warrant requirement).

Enterprise-Wide Relief from the Review Commission:

Despite what seems to be settled law that abatement called for in an OSHA citation must be limited to the location where the violation was identified, OSHA has recently begun to pursue enterprise-wide mandatory abatement.  For example, OSHA has begun to request the Occupational Safety and Health Review Commission grant such enterprise-wide relief in its rulings.

This has been sought by OSHA in at least two occasions in the past two years; once in July 2010 against the U.S. Postal Service, and again in January of this year against a grocery store chain.  In a January 18, 2012 press release, OSHA reported that the Department of Labor sought enterprise-wide relief at more than 60 of the grocery store chain’s separate locations based on hazards identified and cited at only two of its stores.  OSHA reasoned that the employees at the approximately 58 stores that did not receive citations “were exposed or likely to be exposed to” similar hazards.  Both cases remain in the contest phase.

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Given these three trends in enterprise-wide enforcement, companies operating multiple sites must take every citation they receive seriously, regardless of the size of the penalty.  Often the first citation is issued with an innocuous characterization (e.g., Other Than Serious) and a low or no penalty, or OSHA agrees in a settlement to reduce more serious violations to lower characterizations and penalties.  Employers must be careful to weigh the benefit of a low penalty citation or settlement against the potentially high cost of Repeat violations and costly company-wide abatement that may arise during follow-up inspections at related facilities.

By Amanda Strainis-Walker

OSHA’s recent string of hotel inspections in response to formal safety and health complaints filed by UNITE-HERE and others on behalf of hotel housekeepers is under serious scrutiny from the House of Representatives Subcommittee that oversees OSHA’s operations.  OSHA leadership is defending its decision to inspect hotels, and is signaling that OSHA will not shy away from inspecting employers in the midst of organizing campaigns and/or contentious bargaining over labor agreements.

Over the last year, OSHA received a number of formal, written complaints alleging that employees at Hyatt Hotels were exposed to various hazards, including musculoskeletal injuries, and exposures to hazardous chemicals and potentially infectious materials. The Complaints also alleged that injury and illness records were inadequate. OSHA has already conducted detailed workplace inspections in response to these Complaints at hotels in Illinois, Texas, Indiana and elsewhere.  OSHA has dedicated substantial agency resources (700+ hours on just two inspections of the same employer in the same city) to its first wave of inspections in response to these coordinated multi-city OSHA Complaints.

Read more on the Hospitality Labor and Employment Law Blog.

By Casey M. Cosentino and Eric J. Conn

There is an on-going trend by the U.S. Department of Labor (“DOL”) to leverage popular technology to increase public and consumer awareness of the laws and regulations it enforces. Indeed, the DOL is continually exploring creative ways to share information with the public using the fastest and most-wide reaching means available. Through technology, the DOL is intentionally providing employees and consumers with enforcement data about companies, particularly hotels and restaurants, so that they can make informed employment and patronage decisions.

In July 2011 the DOL launched an “informAction” Smartphone application (“app”) challenge. Third-party developers were asked to develop an innovative iPhone/iPad app using compliance and inspection data on hotels, motels, restaurants and retail stores from the Wage and Hour Division (“WHD”) and the Occupational Safety and Health Administration (“OSHA”). The DOL sought an app that would empower workers and consumers to make educated decisions about what hotels, motels, restaurants, and retail stores to seek employment from and to frequent.

Read more on the Hospitality Labor and Employment Law Blog.

By Casey M. Cosentino and Eric J. Conn

OSHA recently renewed a Local Emphasis Enforcement Program (“LEP”) that targets hotel operators in OSHA’s Region 2, which includes New York, New Jersey, Puerto Rico, and the Virgin Islands. The directive outlining OSHA’s Hotel LEP is available on OSHA’s website.

The Hotel LEP was launched in October 2010, and during the first year of the initiative, OSHA limited enforcement inspections to hotels in the Virgin Islands. According to an OSHA Region 2 official, the agency started in the Virgin Islands because of a high number of reports of workplace injuries at hotels in that area. Since the start of the LEP, OSHA has essentially inspected a different hotel property each month to month and a half. The hotel properties subject to LEP inspections have ranged from locally-owned motels to multinational hotel chains.

Read more on the Hospitality Labor and Employment Law Blog.

By Jay P. Krupin, Kara M. Maciel, and Eric J. Conn

As we reported in our blog post in November of 2010, hotel housekeepers across the nation launched a concerted program of filing complaints with the Occupational Safety and Health Administration (OSHA) alleging a range of ergonomic and chemical exposure injuries sustained on the job. Government regulators and legislators are now taking action in response to these complaints. We have attached a series of articles discussing the nature of the complaints and the government’s response to them.

Read more on the Hospitality Labor and Employment Law Blog.

By Jay P. Krupin and Kara M. Maciel

Last week, on November 9, 2010, housekeepers employed by Hyatt Hotels filed complaints with OSHA alleging injuries sustained on the job. The complaints were filed in eight cities across the country, including Chicago, Los Angeles, San Francisco, Long Beach, San Antonio, Honolulu and Indianapolis.  Similar OSHA actions may occur in Boston, NYC, DC, Atlanta, Las Vegas, Miami, and Orlando with higher concentrations of hotel properties. This is the first time that employees of a single private employer have filed multi-city OSHA complaints, and it appears to be a coordinated effort with organized labor, UNITE HERE.

Read more on the Hospitality Labor and Employment Law Blog.