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.


OSHA Attempts to Overturn AKM-Volks Decision through Proposed Rule

In 2012, the U.S. Court of Appeals for the District of Columbia held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Unhappy with the unfavorable ruling, OSHA added agency action to its Regulatory Agenda for “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness” and on July 29, 2015, OSHA issued a Notice of Proposed Rulemaking.

According to OSHA this proposed rule is meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”  In short, this agency action is an attempt by OSHA to undo the holding in the Volks case.

OSHA claims that no new obligations are created through this rulemaking yet proposes to revise the language of various recordkeeping requirements, including 1904.29(b)(3) as follows:

How quickly must each injury or illness be recorded? You must enter each and every recordable injury or illness on the OSHA 300 Log and on a 301 Incident Report within seven (7) calendar days of receiving information that the recordable injury or illness occurred. A failure to meet this deadline does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses in accordance with the requirements of this part. This obligation continues throughout the entire record retention period described in Sec. 1904.33.

Public comments to this proposed rule are due on or before September 27, 2015. A copy of the proposed rule can be found online.

OSHA Issues New Interpretations of its Process Safety Management Standard

Authored by:  Linda Otaigbe

OSHA has recently issued several memoranda updating guidance on its Process Safety Management (“PSM”) standard. On June 5, 2015, OSHA issued a memorandum to Regional Administrators explaining how inspectors should enforce recognized and generally accepted good engineering practices (“RAGAGEP”) requirements. Among other things, OSHA explained that when an employer’s internal standards are more stringent than the relevant published RAGAGEP and the employer fails to follow its own more stringent internal requirements, OSHA may cite the employer under the relevant section of the PSM standard. A copy of the June 5, 2015 memorandum can be found online.

Also on June 5th, OSHA issued a memorandum to Regional Administrators revising its enforcement policy on the concentration that a chemical present in a process must have in order to determine whether the chemical is at or above the threshold quantity listed in Appendix A of the PSM standard. Recognizing the ambiguity that exists for the 126 out of 137 chemicals that do not have a minimum concentration listed along with their chemical names, OSHA has decided that a 1% concentration test is appropriate for employers to determine if the chemical in the process is at or above threshold limits and therefore covered by PSM. Thus, the new enforcement policy is as follows:

In determining whether a process involves a chemical (whether pure or in a mixture) at or above the specified threshold quantities listed in Appendix A, the employer shall calculate:

(a) the total weight of any chemical in the process at a concentration that meets or exceeds the concentration listed for that chemical in Appendix A, and

(b) with respect to chemicals for which no concentration is specified in Appendix A, the total weight of the chemical in the process at a concentration of one percent or greater.  However, the employer need not include the weight of such chemicals in any portion of the process in which the partial pressure of the chemical in the vapor space under handling or storage conditions is less than 10 millimeters of mercury (mm Hg).  The employer shall document this partial pressure determination.

In determining the weight of a chemical present in a mixture, only the weight of the chemical itself, exclusive of any solvent, solution, or carrier is counted.

A copy of this June 5, 2015 memorandum, which provides examples to illustrate the new policy, is available here.

OSHA issued its third memorandum related to PSM on July 22, 2015. This memorandum revises OSHA’s interpretation of the retail facilities exemption of the standard by expanding the number of retail facilities that are covered. Prior to this change, “an establishment was exempt from PSM coverage if it derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user,” otherwise known as the 50 percent test. Now, the retail facilities exception applies only to “facilities, or the portions of facilities, engaged in retail trade as defined by the current and any future updates to sectors 44 and 45 of the NAICS Manual.” The facilities that are exempt under sectors 44 and 45 of the NAICS Manual include food and beverage stores, electronics and appliance stores, and general merchandise stores. A copy of the July 22, 2015 memorandum can be found here.

OSHA Extends Enforcement Date for Confined Spaces in Construction Standard

On May 4, 2015, OSHA published the Confined Spaces in Construction standard, 29 C.F.R 1926, Subpart AA.  The new standard is effective August 3, 2015.  Several interested stakeholders petitioned the agency for a delay in the August enforcement date citing the  need for additional time to train employees and obtain the necessary equipment to comply with the new requirements.

On July 8, 2015, OSHA issued a memorandum to Regional Administrators indicating that it “will not issue citations to an employer making good faith efforts to comply with the new standard”  between August 3, 2015 to October 2, 2015.   In order to establish good faith efforts, employers must either have provided training in compliance with the new standard, 1926.1207, or training under the previous requirement, 1926.21(b)(6)(i).

According to the memorandum, OSHA will consider whether an employer is engaged in good faith efforts by considering:

  • If employers have not trained employees under the new requirements, whether such training is scheduled to be conducted.
  • If employers do not have the necessary equipment, such as personal protective equipment, to comply with the new standard, whether such equipment has been ordered and is using alternative measures to protect employees.
  • If employers have made any additional efforts to train employees about confined spaces and protect them for the hazards of confined spaces.

Full enforcement of the new Confined Spaces in Construction standard will begin on October 3, 2015.  A copy of the memorandum can be found online.

OSHA Reverses Position on Kinesiology Tape as Medical Treatment

In an interpretation letter to the National Athletic Trainers’ Association dated July 6, 2015, OSHA reversed its earlier interpretation that the use of kinesiology tape is considered medical treatment for recordkeeping purposes.

Late 2014, OSHA issued an interpretation letter to Ms. Linda Ballas, which stated that the use of kinesiology tape is considered medical treatment for OSHA recordkeeping purposes and is, therefore, recordable when used to treat a work-related injury.

In its most recent letter, OSHA indicated that it “reevaluated its classification of the application of kinesiology tape as constituting medical treatment.” According to the letter, OSHA reviewed information associated with kinesiology tape, such as patent applications, relevant instructional materials, directions on proper use, and assessments on the tapes effects and the nature of its medicinal, neurological and physical properties.

After this reevaluation, OSHA has now concluded that “[t]he use of kinesiology tape and other types of elastic taping is included within the definition of first aid treatment, and thus the use of such tape alone would not be considered medical treatment.”

The July 6, 2015 letter of interpretation may be found online.


OSHA launches its Hazard Identification Training Tool

OSHA’s new Hazard Identification Training Tool is designed as “an interactive, online, game-based training tool for small business owners, workers and others interested in learning the core concepts of hazard identification.” Users enter a rudimentary virtual world where they are able to choose to visit one of four scenarios: OSHA Visual Inspection Training, Manufacturing, Construction, and Emergency Room.

OSHA recommends users start with the OSHA Visual Inspection Training where there is a choice of six different pieces of equipment.

person near cart video game

For example, choosing the “Housekeeping” option brings you to a screen with a cleaning cart and an employee. You are given a Hazard Checklist which you check off by using three tools: Inspect Equipment, Observe Operations, and Involve Worker. Once you have completed your inspection, OSHA gives you your results and the reasons behind the answers. Both inspecting the equipment and observing it in operation are more interesting than staring at a manual but, nonetheless, they are basic and fall short of providing all the answers. Involving the worker results in a series of word bubbles giving hints which directly correlate to the potential hazards. It is possible to score a near perfect score 100% of the time by simply involving the worker. Perhaps OSHA is consciously or subconsiously trying to emphasize the importance of involving workers in the health and safety of the workplace!

Choosing to enter one of the other scenarios lets you assume the role of the boss (owner or supervisor) or the worker. In the Manufacturing scenario, you, as the owner of the company, have “20 weeks to maximise your profit while keeping your workforce safe.” Each week you are allowed a maximum of 40 actions to identify and fix hazards – actions not used by the end of the week result in a profit. The Agency’s website summarizes it best: “The user determines how much time to spend on ensuring a safe and healthful work environment and how much to dedicate to making money.” However, in playing the game, it seems that the secret to making a profit is to consciously choose not to use all your actions, thereby spending less time identifying hazards and fixing only the most egregious hazards. In contrast, by using all 40 actions to identify and fix hazards, you will be operating at a loss. This would seem to run counter to the OSH Act which requires employers to provide their employees with working conditions that are free of known dangers. Perhaps with more practice using the hazard identification training tool it might be possible to be responsible while also maximising profits.

video game screen shot 1video game screen shot 2

The written Manual & Resources tab on the OSHA website (i.e., not an actual part of the game) offers the most concrete advice and acknowledges the importance of hazard identification to any business success. OSHA argues that management leadership needs to be aware and involved in this side of the business and that this kind of knowledge cannot be assumed but must be taught. The overview of the training tool is dotted with words and terms such as fundamentals, basics, generic hazard identification, and generalized elements. Taking the approach that the hazard identification training tool offers leaders and small business owners an opportunity in a somewhat fun virtual environment to understand and recognize the importance of identifying hazards, evaluate and prioritize them, while still trying to maintain profitability, demonstrates the value in this training tool. Additionally, by investing the time and money to have the hazards in the scenarios “randomized” OSHA has attempted to ensure that the game can be replayed “mutliple times with different hazard combinations appearing,” The Game Manual itself breaks down in a very readable format the equipment, work areas, people, and the relevant OSHA publications for each of the work scenarios covered – i.e., manufacturing, construction, and healthcare. In this way it is a useful reference tool.

Overall, OSHA scores highly for innovation in introducing this video game format as a way of teaching and learning. However, it is no competition for gaming enthusiasts used to the latest X Box or Playstation. In an ever evolving digital age, the hazard identification training tool has a long way to go to hold the attention of people who may not be “comfortable with the basics of hazard identification”, but who are very comfortable navigating their way through far more complex video games. We invite you to judge for yourself – the Hazard Identification Training Tool can be found on OSHA’s homepage, www.osha.gov.



Eight Tips for Addressing OSHA’s New Enforcement Guidance on RAGAGEP under the Process Safety Management Standard

OSHA issues new guidance to Regional Administrators and State Plan Designees on the enforcement of the Process Safety Management (PSM) standard’s recognized and generally accepted good engineering practices (RAGAGEP) requirements. The new guidance clarifies OSHA’s positions with respect to enforcing the PSM standards that reference or imply the use of RAGAGEP. The memorandum provides the most detailed information on how OSHA will handle PSM inspections with respect to the RAGAGEP requirements and it includes 16 detailed enforcement considerations that inspectors will evaluate when reviewing an employer’s compliance. The memorandum also provides specific guidance on when citations may be issued.

Employers covered under 29 C.F.R. § 1910.119 should carefully review their compliance with the following standards in light of this new guidance and OSHA’s renewed focus on the proper application of RAGAGEP to covered processes and equipment:

  • 119(d)(3)(ii) – The employer shall document that equipment complies with RAGAGEP.
  • 119(d)(3)(III) – For existing equipment designed and constructed in accordance with codes, standards, or practices that are no longer in general use, the employer shall determine and document that the equipment is designed, maintained, inspected, tested, and operating in a safe manner.
  • 119(j)(4)(ii) – Inspection and testing procedures shall follow RAGAGEP.
  • 119(j)(4)(iii) – The frequency of inspections and tests of process equipment shall be consistent with applicable manufacturers’ recommendations and good engineering practices, and more frequently if determined to be necessary by prior operating experience.

Issuance of this memorandum signals that inspectors will be looking more closely at these requirements during PSM-related inspections and that they will specifically be looking for information on whether employers have identified and documented the appropriate RAGAGEP that applies to each piece of equipment and are following the inspection and testing requirements including frequency of those inspections and tests.

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