Inspections are Not All Equal: OSHA Develops Tiered Inspection System

OSHA announced this week a shift in how it will evaluate inspections, recognizing that inspections are not all equal and that more-complex inspections deserve more weight. The complexity of an inspection affects the amount of time, manpower and other resources required by OSHA and this new tiered inspection system will reflect this complexity. Under the new system, “Enforcement Units” will be assigned to an inspection; the simplest inspection will be one unit and the most complex inspection could be as many as nine units. Dr. Michaels believes that this will allow OSHA to focus on “more impactful inspections” rather than the number of inspection completed each year.

The practical implication for employers is that starting October 1, 2015, they can expect to see an increase in the number of complex inspections performed by OSHA.  Specifically, OSHA notes that it will perform more inspections involving musculoskeletal disorders, chemical exposures, workplace violence, and process safety management violations. With a greater focus on these complex safety and health inspections, NOW is the time to review your policies and procedures to ensure that they meet all OSHA requirements.

More details are available here .

OSHA Inspecting 40 Percent of Reported Injuries

OSHA’s new reporting requirements began on January 1, 2015. Under these requirements, employers in federal OSHA jurisdiction are required to report to OSHA any work-related fatality or any work-related injury resulting in an employee being formally admitted to the hospital or any work-related amputation or loss of an eye. Since the implementation of these new requirements, OSHA estimates that it is receiving 200 to 250 reported incidents each week.

According to OSHA, roughly 40 percent of those reported injury cases are resulting in an on-site inspection by the agency. In about 50 percent of the cases OSHA is instituting the “rapid response investigation” and sending the employer a letter requesting additional information about the incident and the employer’s corrective actions. In roughly 10 percent of the cases, no agency action is taken either because the event was not reportable under the new requirements or OSHA does not have jurisdiction.

To date not all state plans have adopted the new reporting requirements and some have, but have not adopted them verbatim. For example, Kentucky previously required employers to report amputations within 72 hours. However, Kentucky OSHA’s definition of amputation is limited to amputations including bone-loss. In revising its reporting requirements, Kentucky simply added the reporting of the loss of an eye. So Kentucky chose to keep the 72 hour requirement and not adopt federal OSHA’s 24-hour time period for amputations. Additionally, Kentucky OSHA did not revise its definition of amputation to include amputation of finger-tips without bone loss.

OSHA has compiled a table listing the status of each state’s adoption of the new requirements.


Draft DOL Policy Lists ‘Economic Realities’ as Key OSHA Test of Joint Employer Status

Many more franchisors are likely to be judged to have a joint employer relationship with franchisees, subjecting them to enforcement by the Occupational Safety and Health Administration, under a draft policy reported to be circulating within the Department of Labor (DOL). To read the full article, written by Tressi Cordaro, click here.

Laundering Responsibilities for FR Clothing

In an interpretation letter dated June 1, 2015, OSHA answered the question “Under OSHA regulations 29 CFR 1926.95(a) who is responsible for the laundering of fire retarding clothing that is provided to employees?” The section states that protective equipment “shall be provided, used, and maintained in a sanitary and reliable condition” but does not elaborate on how this should be achieved.

The letter clarifies that the standard does not per se prohibit home laundering of FR and arc-rated clothing. However, the employer is responsible for making sure that laundering does not compromise the protective properties of the clothing. According to the letter, “If employers rely on home laundering of the clothing, they must train their employees in proper laundering procedures and techniques, and employers must inspect the clothing on a regular basis to ensure that it is not in need of repair or replacement. If an employer cannot meet these conditions, then the employer is responsible for laundering the FR and arc-rated clothing.” Practically speaking, home laundering is a risky proposition. If an employer is unwilling or unable to comply with the requirements for home laundering, then the employer is responsible for laundering the FR and arc-rated clothing.

OSHA Updates Its National Emphasis Program on Amputations

Noting that the manufacturing sector experienced more than twice the rate of amputations as that of the entire private sector in 2013, the Occupational Safety and Health Administration has updated its nine-year-old National Emphasis Program (NEP) on amputations. Click here to read the full article by Nickole Winnett, which was published in the August 31st issue of the Workplace Safety & Health Weekly Update.

OSHA Updates the National Emphasis Program on Amputations

OSHA’s National Emphasis Program (“NEP”) on Amputations has been in effect since 2006 but on August 13th the Agency issued an updated NEP (CPL 03-00-019) that significantly expands the industries targeted for inspections.  The updated NEP applies to general industry workplaces in which any machinery or equipment likely to cause amputations is present.  According to the NEP, targeted inspections will include an evaluation of employee exposures during operations such as normal operations; clearing jams; making adjustments while machinery is running; cleaning, oiling or greasing machines or machine pans; and locking out machinery to prevent accidental start-up.

Under the NEP, amputation is defined as a “traumatic loss of limb or other external body part.” Amputations include a part, such as a limb or appendage that has been severed, cut off, amputated (either completely or partially); fingertip amputation with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached.  Amputations do not include avulsions, enucleations, deglovings, scalping, severed ears, or broken or chipped teeth.

The NEP on Amputations focuses on industries which have a high number and a high rate of amputations or manufacturing plants where workers have suffered amputations in the past five years.  BLS data shows that in 2013, 2000 workers in the manufacturing industry suffered amputations – a figure two times higher than the amputations reported by all of private industry.  A total of 80 manufacturing industry groups are covered under the NEP and are now targeted for inspections; 49 NAICS groups were added to the list of industries that may be inspected under the NEP.  In setting parameters for its targeting methodology and industry scope, the updated NEP incorporates the most recent data available from OSHA’s Information System (“OIS”), OSHA’s Integrated Management and Information System (“OIS”), the Bureau of Labor Statistics (“BLS”), and the 2012 NAICS codes/titles.

The updated NEP also incorporates the recent changes to OSHA’s recording and reporting injury and illness requirements which went into effect on January 1, 2015 for states under federal OSHA jurisdiction.  Under this NEP on Amputations, if an amputation is reported by an employer whose business falls within one of the NAICS codes listed in the NEP, they will be subject to an inspection under the NEP.

According to the NEP, each Regional and Area Office is required to implement a 90-day outreach program that supports the purpose of the NEP and notifies industry groups and others of the changes, but there are no specifics on exactly how this will be accomplished.

One saving grace is new establishments added based on targeting methodology and the use of NAICS codes will be offered outreach prior to inspection.

To read more or find out if your industry is covered, click here.

California Summer E-Series Webinar: How to Avoid Cal/OSHA’s Most Commonly Violated Standard and Develop an Effective IIPP

For those of you with operations in California, you don’t want to miss Jackson Lewis’ upcoming complimentary webinar on avoiding Cal/OSHA’s most commonly violated standard and developing an effective Injury and Illness Prevention Program.  For details and to register, click here to see the posting on our California Workplace Law Blog.

OSHA Issues Extensive Hazard Communication Directive

On July 20, 2015, OSHA published a long awaited Directive on the revised Hazard Communication Standard (“HCS”), Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079. The Directive is intended to provide inspection and enforcement guidance to compliance officers regarding the final Hazard Communication Standard published in March 2012. However, the Directive also serves as a valuable tool to employers implementing the requirements on the revised Hazard Communication Standard. The 124-page Directive provides guidance in the areas of Hazard Classification, Labels, Safety Data Sheets (“SDSs”) and Employee Training.

The revisions to the Hazard Communication standard in 2012 were based on the Globally Harmonized System of Classification and Labelling of Chemicals (GHS Revision 3, 2009). The Directive cautions employers who may wish to comply with GHS Revision 4 or future versions because according to OSHA those revisions may have major differences with the standard and therefore may not be as stringent as the current requirements. If an employer relies on GHS Revision 4 or future versions and there are major differences resulting in a less stringent application of the current requirements, OSHA has instructed compliance officers to issue citations.

Multi-Employer Worksites

The Hazard Communication standard “applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.” 29 C.F.R. § 1910.1200(b)(2) (emphasis added). In the Directive OSHA addresses how the scope of the standard applies to multi-employer worksites. Specifically, OSHA states, “if an employer is aware that his/her employees are exposed to chemicals brought onto a multi-employer worksite by other employer(s) or if service personnel are exposed to natural gas during furnace repair” then the standard applies and an employer whose employees are exposed to such chemicals known to be present must include information about the hazards of those chemicals in the hazard communication program.

The Directive instructs compliance officer to ensure that an employer’s written hazard communication program addresses “method(s) to provide the other employers on-site access to SDSs for each hazardous chemical the other employer(s)’ employees may be exposed.” Additionally, the written program must include how employers will inform other employers about any precautionary measure to protect employees and how employers will inform other employers about the labeling system used.

DOT Labeling

One area that provides employers needed guidance is the interplay between labeling under the HCS and other federal agencies, specifically the Department of Transportation (“DOT”). In the Directive OSHA considers the DOT diamond-shaped placards that contain hazard symbols to be pictograms and therefore in compliance with the requirements of the standard.

According to DOT, the HCS pictograms are not in conflict with a DOT label. Therefore, “OSHA will allow labels to contain both DOT pictograms (labels as they are referred to by DOT) and the HCS pictograms for the same hazard.” In the future, OSHA will revise Appendix C, C.2.3.3 to reflect this change in policy.

According to OSHA, manufacturers, importers or distributors who must comply with both DOT and HCS requirements have two options: (1) use only the DOT label for the hazard (which OSHA will consider to be compliant for a pictogram) or (2) use both the DOT label and the HCS pictogram for the hazard. However, for hazards that do not require a DOT label, there must be a HCS pictogram to be compliant with the hazard communication standard requirements.


Under the Hazard Communication standard, employers are required to train their employees on the hazardous chemicals in the workplace, labeling, SDSs, and measures that employees can take to protect themselves when using hazardous chemicals, such as personal protective equipment. While the standard does not dictate how or in what fashion employers must provide this training, according to the new Directive, “use of computer-based training by itself would not be sufficient to meet the intent of the standard’s various training requirements. Employees must have the opportunity to ask questions and receive responses in a timely manner.” Therefore, employers relying solely on computer-based training should consider adding a component of training that would allow employees time to ask questions.

Additionally, the Directive advises compliance officers that “[i]f employees do not speak English and are given work instructions in a foreign language, the training must be provided in that language.” Based on this enforcement guidance, employers can anticipate that compliance officers will begin to question how employees are trained and whether such training is provided in a language understood by employees. If an employer trains employees solely in English then it may ultimately have to prove to OSHA that the employees understood the training.

Temporary Workers

The new Directive also covers guidance on OSHA’s enforcement initiative for temporary workers and instructs compliance officers to review contracts between staffing agencies and host employers “to determine if they set out the training responsibilities of both parties.” While employers are not required to revise their contracts to contain such information, during an inspection OSHA will try to determine if such responsibilities have been clearly communicated between a host employer and a staffing agency.

OSHA expects that staffing agencies will provide general training on the HCS requirements and that host employers will provide the site-specific training on the chemicals and hazards at the worksite where temporary employees will work and will supply the appropriate personal protective equipment. While these are the agency’s expectations, staffing agencies and host employers are free to make alternative arrangements so long as temporary employees are provided equivalent HCS training as the host employer’s employees.

General Duty Clause – Chemicals with no Permissible Exposure Limit (“PEL”)

The Directive instructs compliance officers to consider using the requirements of HCS, specifically the SDSs, to support a general duty clause, or 5(a)(1) violation for chemicals with no OSHA PEL.

According to OSHA, “[e]mployers should consider the information in the SDS along with their knowledge of actual conditions in their workplaces to determine whether they must take additional steps to protect employees.”

The Directive suggests that compliance officers consider the information contained in a SDS and determine whether employers have taken appropriate steps, including engineering controls, personal protective equipment, and personal protective clothing to protect employees for overexposures.


The extensive Directive covers each aspect of the standard’s requirements and provides compliance officers with a road map for citations where employers are found to be in violation of the requirements. A copy of the Directive can be found online.