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.
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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

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

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

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

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

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.”
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