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OSHA Law Blog

OSHA Issues Guidance on Protecting Employees from Demolition Hazards

OSHA recently issued a Trade News Release reminding employers to protect workers from demolition hazards.  OSHA outlined the particular hazards associated with “Demolition: Construction in Reverse, with Additional Hazards.”  With proper planning, personal protective equipment, training and compliance with OSHA standards (29 CFR Part 1926, Subpart T – Demolition), OSHA claims these hazards can be controlled and even eliminated.

The key points to remember when undertaking demolition are:

  • Plan ahead to get the job done safely
  • Provide the right protection and equipment
  • Train all employees about hazards and how to use the equipment safely

To read more about what constitutes demolition and the unique hazards involved, follow this link to OSHA’s Safety & Health Topics page which shares some helpful reminders, considerations to keep in mind when undertaking demolition work, and more details on the key points outlined above:  https://www.osha.gov/doc/topics/demolition/index.html.

OSHA Inches Forward with Electronic Recordkeeping Regulation

Special thanks to Nickole Winnett for her assistance with this blog post.

In November 2013, OSHA published a notice of proposed rulemaking, “Improve Tracking of Workplace Injuries and Illnesses,” to add electronic recordkeeping requirements that would require certain employers to electronically submit to OSHA injury and illness recordkeeping information on a quarterly and/or annual basis.  Additionally, the proposed rule would establish a public searchable website where OSHA would make employers’ injury and illness records available to the general public.

One of the many objections to this rule by employers during the comment period was that making such information publically available undermined the current “no-fault” recordkeeping system, which sought to encourage accurate reporting of injuries and illnesses rather than determine fault for the injury or illness. Many opponents of the proposed rule were concerned that the rule essentially labeled employers as “good” or “bad” based on their injury and illness data, data which is impacted by many variables and may not reflect the robust nature of the employer’s safety and health program.  Concerns were raised that the proposed rule would discourage employees and/or employers from reporting injuries and illnesses because such information would be electronically available and searchable to the public.

In an alleged effort to apparently address those concerns, on August 14, 2014, OSHA issued a supplemental notice of proposed rulemaking.  OSHA is now considering amending the proposed rule to include provisions that would

(1) require that employers inform their employees of their right to report injuries and illnesses; (2) require that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and (3) prohibit employers from taking adverse [termination, reduction in pay, reassignment to less desirable position] action against employees for reporting injuries and illnesses.

As a basis for this rule, OSHA claims “it would provide OSHA with additional enforcement tools to promote the accuracy and integrity of the injury and illness records employers are required to keep under Part 1904. . . .  Under the additions to the proposed rule under consideration, OSHA would be able to cite an employer for taking adverse action against an employee for reporting an injury and illness, even if the employee did not file a complaint.”

As the supplemental proposed rule readily acknowledges, what OSHA is proposing is already required either directly or implicitly by existing standards and the whistleblower provisions under section 11(c) of the OSH Act.  Specifically, employers are already required to establish policies and procedures for employees to report injuries and illnesses under section 1904.35.  And, implicit in this requirement is that such procedures must be reasonable and not unduly burdensome.  As OSHA acknowledged in the supplemental notice, “OSHA believes that onerous and unreasonable reporting requirements are already in effect prohibited by [section 1904.35] (i.e., one has not created a ‘way to report’ injuries if the ‘way’ is too difficult to use). . . .”

Additionally, employers are already prevented from disciplining employees or taking adverse action against employees who report injuries or illnesses.  “[M]uch of the primary conduct that would be prohibited by the new provision is likely already proscribed by 11(c).” However, the ability of OSHA to cite an employer without an employee complaint is a significant departure from the language under section 11(c) and it would circumvent the current requirement that OSHA bring cases on behalf of employees in U.S. district court rather than issue citations.

Stakeholders have until October 14, 2014 to submit written comments. A copy of the Federal Register Notice can be found here.

OSHA Concludes that Acclimatization May Be the Most Important Element of a Heat-Illness Prevention Program

On August 8, 2013, the Occupational Safety and Health Administration (OSHA) published a report in the Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report (Vol. 63. No. 31) related to the causes of heat illness and death among workers in the United States.  The report is the result of a OSHA’s Heat Illness Workgroup’s review of 20 federal enforcement cases in 2012-2013 where employers were issued citations under Section 5(a)(1) of the Occupational Safety and Health Act, better known as the General Duty Clause, for heat-related deaths and illness among workers.

In the 20 cases involving heat illness and death among workers, OSHA found that most of the affected workers worked outdoors, with 13 out of 20 working outdoors. OSHA also found that all employees performed either heavy or moderate work.  OSHA’s review revealed that nine out of the 13 deaths occurred as a result of exposure to heat during the first 3 days of working on the job, with four of those deaths occurring on the worker’s first day in a new job.  In addition, many employers were found to have no heat illness prevention program or lacked many of the basic requirements, such as water management, shaded rest areas, and work-rest cycles.

The report indicates that a failure to provide acclimatization of new employees or employees who are returning to work from an absence of more than a week was “the most common deficiency and the factor most clearly associated with death.”  As a result, OSHA concluded that employers need to provide time to acclimatize new employees, workers who are absent from the job for more than a few days, and those working outdoors during an extreme heat wave as part of a successful heat illness prevention program.

OSHA recommended that new workers and all workers returning from an absence of more than a week should begin with 20% of the usual duration of work in the hot environment on the first day, increasing the duration of work by no more than 20% each subsequent day.  OSHA also recommended that during heat waves or rapid temperature increases, employers should acclimatize workers, even experienced ones, by reducing their duration of work on the first day of excessive heat by 50% and slowly increasing the duration of work on the second and third days.

NLRB Issues Memo on Notifying Parties of Right to File OSHA Complaint

The National Labor Relations Board issued  Memoradum OM 14-77 on August 8, 2014, informing all regional directors and resident officers that they should notify parties of their right to file a complaint with OSHA if they believe that an employer may have violated a health or safety standard or an anti-retaliation provision of the Occupational Safety and Health Act.  The memorandum notes that Board employees should notify parties of their rights to file an OSHA safety complaint or whistleblower complaint only when they believe that a possible violation of the Act exists.

The memorandum also notes that the NLRB will coordinate case proceedings with OSHA, as appropriate, when it learns during processing of an unfair labor practice charge that OSHA is handling a parallel investigation.

This memorandum is another step by OSHA in coordinating investigations with other federal agencies and expanding the avenues in which employees are made aware of their rights to file both safety complaints and anti-retaliation complaints against their employers.  As with the recent Memorandum of Understanding issued with the Federal Motor Carrier Safety Administration, it is likely that more OSHA complaints will be filed and more investigations will be conducted that employers will need to respond to.




Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

MSHA Proposes Far-Reaching Penalty and Citation Changes. MSHA has proposed profound changes to its Part 100 penalty assessment process and seeks to change how inspectors determine “serious” violations. It appears the changes would bypass controlling law on “significant and substantial” violations. MSHA also proposes to limit the authority of the Federal Mine Safety and Health Review Commission (FMSHRC) to review contests of a violation or penalty.

More Sites Added to OSHA’s Severe Violator Enforcement Program. The number of sites added to OSHA’s Severe Violator Enforcement program (SVEP) has increased by 23% from last year. A total of 423 sites were SVEP-listed as of July 1, when the program entered its fifth year, compared to 343 last year, an increase of 80.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

OSHA Continues Enforcement Initiative on Temporary Workers

In April 2013, OSHA launched an enforcement initiative aimed at reducing injuries and illnesses suffered by temporary workers.  According to OSHA, the temporary worker industry has grown 125% since 1990 and approximately 10 million employees are in temporary jobs per year.  Given the increased reliance on staffing agencies and temporary workers, OSHA has made it a priority to ensure that temporary employees are equally protected as direct-hire and permanent employees.

As a general rule, OSHA considers the employment relationship between host employers, staffing agencies and temporary workers as “joint.”  That is, the host employer and the staffing agency are joint employers of the temporary worker.  According to a July 15, 2014 memorandum to Regional Administrators, “The key attributes of the traditional employer-employee relationship are shared by two or more employers in such a manner that they each bear responsibility for compliance with statutory and regulatory requirements.”  Under this structure, OSHA believes that both employers share control over the worker and therefore share responsibility for the worker, including safety and health.

This newly issued memo defines “temporary workers” as “workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis.”  The memo echoes previous statements made by OSHA as to responsibilities or best practices for managing the safety and health of temporary employees.  These best practices include:

  • Host employer and staffing agency should consider hazards they are best positioned to prevent and correct. For example, host employers are generally better suited to address site specific hazards, such as machine guarding.  In comparison, staffing agencies may be better positioned to address general training or conduct audiometric testing if employees are exposed to high noise levels.
  • Host employer and staffing agency should both perform hazard assessments of the worksite.  This may include the staffing agency performing an actual inspection of the workplace and identifying specific hazards present and/or reviewing job assignments or job hazard analyses to ensure that such hazards are eliminated or employees are properly protected and trained.
  • Host employers must record work-related injuries and illnesses of temporary employees if they supervise those employees on a day-to-day basis.  OSHA defines day-to-day as “…the employer supervises the details, means, methods and processes by which the work is to be accomplished.”  For example, if the staffing agency has no supervisory personnel on site and temporary employees get job assignments or instructions from the host employer’s supervisors then the host employer must record work-related injuries or illnesses of those temporary workers.
  • Host employer and staffing agency should communicate with each other regarding temporary workers, particularly when an employee is injured.  Host employers should notify staffing agencies when a temporary worker is injured and staffing agencies should notify host employers as to any medical treatment or lost time.

The memo instructs compliance officers who are conducting inspections at worksites with temporary workers to review contracts between the host employer and the staffing agency to determine if safety and health responsibilities are spelled out in the contract.  Employers may wish to consider reviewing existing contracts to determine whether they address any of the following issues:

  • What employer, if any, is obligated to develop and maintain a written safety and health program
  • Whether the staffing agency will conduct periodic worksite inspections to examine the workplace to be able to determine what conditions exist at the facility and what hazards may be encountered
  • To what extent the host employer and the staffing agency will each provide safety and health training and whether the each employer will have an opportunity to audit or review as necessary any training and documentation of training provided to temporary employees
  • Which employer will provide at no cost to temporary employees, all site-specific personal protective equipment as required by the temporary workers job duties

Further, the memo instructs compliance officers during inspections to consider whether host employers and staffing agencies have met their responsibilities for safety and health of temporary workers.  Additionally, compliance officers can issue citations to either entity or to both depending on the specific facts.  For example, if a temporary worker operated a forklift at a host employer facility and was not trained, OSHA may consider citing the staffing agency for failing to provide formal training and also cite the host employer for failing to provide practical training, such as demonstrations of operation.

OSHA has indicated it anticipates issuing a compliance directive on temporary workers, as well as, bulletins on the various aspects of temporary workers, such as whistleblower protection rights, personal protective equipment, training, hazard communication and noise.

A copy of the policy memorandum can be found online here.

OSHA Clarifies Jurisdiction over Small Farms

Each year since 1976, the appropriations bill contains a rider that prohibits OSHA from spending funds on the enforcement of OSHA rules, regulations and standards for farming operations with 10 or fewer non-family employees.  And, there is no exception to this prohibition, such as for fatality or imminent danger cases.

OSHA has a directive on Enforcement Exceptions and as to farmers it states:

Enforcement Guidance for Small Farming Operations. The Appropriations Act exempts small farming operations from enforcement of all rules, regulations, standards or orders under the Occupational Safety and Health Act.

Under this enforcement guidance a farming operation is exempt from all OSHA activities if it: (1) Employs 10 or fewer employees currently and at all times during the last 12 months; and (2) Has not had an active temporary labor camp during the preceding 12 months. Note: Family members of farm employers are not counted when determining the number of employees.

On July 29, 2014, OSHA issued a “Policy Clarification on OSHA’s Enforcement Authority at Small Farms.”  In this policy, OSHA defines “farming operation” as:

Any operation involved in the growing or harvesting of crops or the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations. Crop farming operations activities include preparing the ground, sowing seeds, watering, weeding, spraying, harvesting, and all related activities necessary for these operations, such as storing, fumigating, and drying crops grown on the farm.

The policy explains that OSHA considers onsite storage or the sale of grain on a farm as “related activity” and therefore small farms would still be exempt from OSHA jurisdiction.  However, OSHA claims that a small farm with grain handling operations for grain grown on other farms would not be exempt, nor would a small farm that has a food processing facility for items like processing cider from apples or milling flour and making baked goods.  These activities would be treated as grain handling and food processing operations and not small farming operations and therefore would be subject to OSHA jurisdiction even if they take place on a small farm.

A copy of the policy can be found online here.

OSHA Enters Into MOU with the FMCSA

The Occupational Safety and Health Administration (“OSHA”) recently entered into a Memorandum of Understanding (“MOU”) with the Federal Motor Carrier Safety Administration (“FMCSA”).  The MOU is intended to facilitate coordination and cooperation between the two agencies when enforcing the anti-retaliation provision of the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105, and the anti-coercion provision in 49 U.S.C. § 31136(a)(5).

Under the MOU, OSHA and FMCSA agree to share information with the complainant and each other in order to further the purpose of the anti-retaliation and anti-coercion provisions.  Specifically, when an individual notifies FMCSA of alleged retaliation as a result of engaging in STAA-protected activity, FMCSA will notify that individual of their right to file a complaint with OSHA and seek a personal remedy.  Similarly, when OSHA receives a complaint under STAA, it will promptly provide FMCSA with a copy of the individual’s complaint and any findings and preliminary orders that OSHA issues.  In addition, if an individual further notifies OSHA of other safety allegations under the FMCSA, OSHA will provide the individual with the FMCSA complaint hotline number and e-mail address.

Each agency also agrees to share all information it obtains concerning a particular allegation with the other agency when requested and exchange data as expeditiously as practicable.

Finally, both agencies agree to provide training to appropriate personnel from the other agency.  FMCSA will provide training to OSHA personnel on how to recognize violations of FMCSA safety regulations and allegations of coercion that should be referred to FMCSA, and OSHA will provide training to FMCSA personnel on how to recognize allegations of retaliation or reprisal and other safety-related allegations that should be referred to OSHA.

This coordination means that employers will likely be subject to investigation by both agencies even when the complaints are frivilous or not submitted in good faith.

Breaking News: President Obama Signs “Fair Pay and Safe Workplaces Executive Order”

In the latest of a series of recent Executive Orders signed by the President relating to federal contractors, the President yesterday signed the “Fair Pay and Safe Workplaces Executive Order.”  For details regarding this EO and the new requirements facing government contractors, please click here to read the full post on our Affirmative Action & OFCCP Law Advisor Blog.

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Judge Makes Latest Move in Dispute with DOL Solicitor over Mine Act Provision. A dispute over a proposed settlement agreement in a case before the Federal Mine Safety and Health Commission has devolved into a tit-for-tat exchange between a Commission administrative law judge (ALJ) and the U.S. Department of Labor’s Office of the Solicitor (SOL) over a provision of the Mine Act.

OSHA Issues Warning about Heat Illness. OSHA kicked off its annual Heat Illness Prevention Campaign by warning employers who fail to take precautions to protect employees from recognized heatstress hazards they could face citations under the agency’s general duty clause.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.