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OSHA Law Blog

OSHA Issues New Temporary Worker Bulletins

OSHA announced in April 2013 its initiative to protect temporary workers. Since then, OSHA has published three bulletins intended as guidance documents for situations where a staffing agency and a host employer are considered joint employers, sharing the responsibility to meet the health and safety requirements under the OSH Act. The two most recent bulletins cover Personal Protective Equipment (PPE) and Whistleblower Protection Rights.

The recurring theme of the bulletins emphasized by OSHA is the joint responsibility both employers assume for worker safety and health and the fact that neither the staffing agency nor the host employer is exempt from liability because the other failed to fulfil its responsibilities. OSHA encourages both parties to have a written plan in place before temporary workers are employed. However, such a plan doesn’t absolve either the staffing agency or the host employer from legal responsibility but it may clarify expectations.

When an employer deems PPE necessary, the employer provides both equipment (at no cost to the employee) and training to its employees. The employer is also responsible for ensuring that the PPE is not defective and if damaged, is not used. Additionally, there may be occasions when a medical evaluation is needed for the use of respiratory protection and this too is the employer’s responsibility. In the case of temporary workers, the host employer generally assumes responsibility for providing the proper PPE and training because it is most familiar with, and in the best position to assess, potential hazards. However, according to OSHA the staffing agency as a joint employer should ensure that the host employer provides the proper PPE and training and to that end, the staffing agency should also assess the potential hazards on an ongoing basis. In OSHA’s opinion, as joint employers, both the staffing agency and the host employer are liable for workers’ safety and health regardless of which one assumed responsibility for providing and paying for adequate PPE and training.

The third bulletin provides guidance regarding Whistleblower Protection Rights. Under section 11(c) of the OSH Act, workers who report injuries or raise safety and health issues with their employer or OSHA are protected from retaliation by the employer. Such action by an employee is considered a “protected activity.” According to OSHA, this protection extends to temporary workers who are protected from retaliation by both the staffing agency and the host employer. If a host employer requests the staffing agency to remove a temporary worker from its worksite after the temporary worker raised health and safety concerns or reported an injury, and the staffing agency obliges by moving the temporary worker to a new worksite, the staffing agency may still be liable for retaliation against that temporary worker. Temporary workers may file complaints of retaliation with OSHA against either the staffing agency or the host employer, or, in some circumstances both.

All three bulletins may be accessed in full on OSHA’s Temporary Worker Initiative page https://www.osha.gov/temp_workers/index.html.

 

 

Recent OSHA Inspection Statistics and Enforcement Initiatives

At a recent American Bar Association meeting, Tom Galassi, Director of Enforcement Programs for OSHA, stressed the agency’s continued focus on key enforcement initiatives, such as temporary workers, corporate-wide settlement agreements and the continued use of the severe violator enhancement program (“SVEP”).

Inspection Statistics

Mr. Galassi discussed inspection statistics and noted that OSHA has committed to conducting more industrial hygiene/health inspections in fiscal year 2015. In FY 2014 81% of the inspections conducted were safety related in comparison to the 19% health inspections. Year to date for FY 2015 79% of inspections were safety focused and 21% were health focused. It seems the agency would like to balance out the proportion of inspections.

FY 2012-FY 2015 Inspections Conducted

Mr. Galassi discussed that the overall number of inspections for FY 2014 are down; however, this is likely due to the government shutdown for three weeks in 2014. Mr. Galassi stated that he believes without the shutdown the total inspections conducted would have been on par with previous years, which are roughly 40,000 inspections a year.

For FY 2014, 26% of the inspections conducted were in full compliance with applicable OSHA standards, meaning no citations issued to 26% of the employers who were inspected in 2014. OSHA has seen a steady increase in this rate since FY 2010.

Mr. Galassi discussed that the number of complaint inspections are up. There was a 3% increase in the number of complaint inspections between FY 2013 and FY 2014 with most of these inspections being in General Industry. Interestingly, there has been a downward trend in number of complaint inspections in the construction industry.

FY 2012-FY 2015 Complaint Inspections

Mr. Galassi also discussed the top ten OSHA citations for FY 2014. Over the last several years this top ten list continues to remain consistent. The top four categories of hazards include: falls, struck by, amputations, and electrical. The top ten OSHA citations for FY 2014 are:

  1. Fall Protection
  2. Hazard Communication
  3. Scaffolding
  4. Respiratory Protection
  5. Powered Industrial Trucks
  6. Lockout/Tagout
  7. Ladders
  8. Electrical, Wiring Methods
  9. Machine Guarding
  10. Electrical, General Requirements

Severe Violator Enhancement Program (“SVEP”)

OSHA continues to utilize the Severe Violator Enhancement Program (“SVEP”) as a key enforcement initiative. According to Mr. Galassi, on February 11, 2015, oil and gas hazards were incorporated into SVEP high-emphasis hazards. The agency’s intention is to include upstream oil and gas hazards such as those in production services, drilling and well servicing, including fracking. However, Mr. Galassi did not identify the specific hazards that would be part of the high-emphasis hazards under SVEP. Mr. Galassi noted that the SVEP compliance directive will be updated to include upstream Oil & Gas industry NAICS 211111, 213111 and 213112 — Oil and Gas Production Services, Drilling and Well Servicing/Upstream Oil and Gas Industry. Although Mr. Galassi noted these changes took place February 11, 2015, we were unable to locate any new enforcement guidance on OSHA’s website pertaining to SVEP.

Since the implementation of SVEP, there have been 474 SVEP cases. Of the 474, the majority of cases are related to citations of high-emphasis hazards as outlined in the SVEP Directive, with only 2% relating to Process Safety Management. According to OSHA, approximately 60% of the SVEP cases to date are in construction. Roughly 25% of the 474 total cases are fatalities.

New Reporting Requirements

Mr. Galassi discussed recent data from the new reporting requirements which were implemented January 1, 2015. Mr. Galassi stated that OSHA intends to conduct on-site inspections for all fatalities reported as well as any incident involving the hospitalization of two or more employees. To date, 2400 reports were made under the new reporting requirements. Of the 2400 reports, in 35% of those OSHA conducted an on-site inspection. A small percentage of reports either were not work-related or not covered by the new reporting requirements. The remaining 45% OSHA utilized its “Rapid Response Investigation” and sent employers letters requesting information about the employer’s investigation into the incident, its root cause analysis and corrective action.

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:

Agency Interpretive Letters Not Subject to Rulemaking, High Court Rules. The Supreme Court has held that the U.S. Department of Labor’s Wage and Hour Division (WHD) did not need to undergo Administrative Procedure Act (APA)-mandated notice-and-comment rulemaking when it issued interpretations of its regulations that conflicted significantly with interpretations WHD adopted earlier. Perez v. Mortgage Bankers Association, et al., No. 13-1041, 2015 U.S. LEXIS 1740 (Mar. 9, 2015).

Judge Finds No Basis for MSHA Housekeeping Citation. A judge has vacated a citation, and the associated $12,248 fine, after determining a contractor had not violated the Mine Safety and Health Administration’s housekeeping standard at a Nevada gold mine.

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.

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:

OSHA Issues Enforcement Guidance for HazCom Compliance on Mixtures. The Occupational Safety and Health Administration has backed up its pledge, made in November, not to cite manufacturers or importers, including product formulators, if they are unable to develop hazard communication program materials for chemical mixtures in compliance with the agency’s revised Hazard Communication Standard (HCS) by the June 1, 2015, deadline.

MSHA Issues Clarifications to Civil Penalty Proposal. Responding to concerns raised by stakeholders, the Mine Safety and Health Administration has clarified the negligence and gravity classifications in the agency’s proposed rule to amend its civil penalty procedures. 80 Fed. Reg. 7393.

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 Updates Planned Inspection Exemptions

In a memorandum dated January 30, 2015, OSHA announced an update to Appendix A of its “Enforcement Exemptions and Limitations under the Appropriation Act” Directive (CPL 02-00-051) for 2015. Appendix A outlines the list of small employers who are exempted from safety programmed inspection under the “Appropriation Act” exemption.

Under the terms of the Appropriations Act, limitations are placed on OSHA’s authority over small employers in low-hazard industries. Employers in low-hazard industries who currently have ten or less employees, and who had ten or less employees at all times over the previous 12 months, are exempt from programmed inspections for that calendar year. Low-hazard industries are identified by the North American Industry Classification System (NAICS) Codes for industries with a Days Away, Restricted, or Transferred (DART) occupational injury and illness rate below the national private sector rate of 1.7 per 100 workers for 2013.

Before conducting a programmed safety inspection, the CSHO must determine whether or not the employer is exempt under the Appropriate Act exemption and if the employer is exempt, the CSHO should not conduct the planned program inspection. Dr. Michaels advises CSHOs to be vigilant in choosing the correct NAICS code.

Exemption privileges for small employers do not apply if an inspection is triggered by a complaint from a current employee, concerns alleging imminent danger or health hazards, or employment accidents involving a fatality of one or more employees or hospitalization of two or more employees.

Some industries whose small employers have newly earned the exemption from programmed inspections for 2015 include:

  • solar power generation plants (NAICS 221119),
  • tile and terrazzo contractors (NAICS 238340),
  • industrial gas manufacturing (NAICS 325120),
  • convenience stores (NAICS 445120), and
  • pump and pumping equipment manufacturers (NAICS 333911).

Some industries whose small employers lost the exemption include:

  • natural gas distribution (NAICS 221210),
  • power and communication line construction (NAICS 237130),
  • electrical contractors (NAICS 238210),
  • painting and wall covering contractors (NAICS 238320),
  • breakfast cereal manufacturing (NAICS 311230), and
  • plumbing fixture manufacturing (NAICS 332913),

The memorandum and updated Appendix A may be viewed on OSHA’s website.

OSHA Issues Enforcement Guidance for Hazard Communication Standard

OSHA recently issued an internal memorandum outlining enforcement guidance for some of the 2012 Hazard Communication Standard’s (HCS) requirements effective on June 1, 2015—namely, the requirement that chemical manufacturers, importers and distributors must develop and use safety data sheets (SDSs) and labels for their chemical mixtures that align with the UN Globally Harmonized System of Classification and Labelling of Chemicals.  The policy provided in the memorandum will not exceed two years.

This memorandum appears to be in response to concerns raised by several trade groups that they needed until June 2017 to comply with the SDS and labeling requirements because they had not received classification and SDS information from upstream suppliers of raw materials in enough time to meet the current deadline.  While it denied the trade groups’ petition to formally modify the compliance date, OSHA indicates in the February 9, 2015 memorandum that it will not issue a citation against manufacturers, importer or distributors if they have exercised “reasonable diligence” and “good faith” to classify and label their chemical mixtures in accordance with the 2012 HCS requirements and if the mixture’s material safety data sheets and labels comply with the 1994 HCS requirements.

Whether the manufacturer, importer, or distributor exercised reasonable diligence and good faith will be determined by the compliance officers and their supervisors, after considering a host of factors designed to ensure that they attempted to meet the June 1, 2015 effective date.  Continue Reading

State Plans Slowly Adopt New Federal OSHA Reporting Requirements

Beginning on January 1, 2015, employers in states with Federal OSHA jurisdiction were required to start reporting to OSHA work-related fatalities (that occur within 30 days of the work-related incident) within 8 hours of learning of the fatality, work-related in-patient hospitalizations, amputations and losses of an eye within 24 hours of the work-related incident.

However, those states that operate their own state OSHA program have until January 1, 2016 to implement the new requirements. To date, only four states have adopted and put into effect the new federal OSHA reporting requirements. These include:

  • North Carolina – effective January 1, 2015
  • Iowa – effective January 14, 2015
  • Tennessee – effective February 24, 2015
  • Indiana – effective March 1, 2015

Some other state plans have indicated that they are currently in the proposed rulemaking process and intend to adopt the new federal requirements relatively shortly. These include:

  • Minnesota – Agency’s intention is to adopt the new requirements by March 18, 2015 with an effective date of October 1, 2015.
  • New Mexico – A public hearing on the proposed rule to adopt the new reporting requirements is scheduled for May 15, 2015.
  • Oregon – The agency currently has an open comment period until March 11, 2015 and anticipates adopting the new requirements in March with an effective date of January 1, 2016.
  • Virginia – The bill to adopt the new requirements was submitted to Governor McAuliffe on February 26, 2015 for signature with an action deadline of March 30, 2015. The effective date is unclear.
  • Washington – A public hearing on the proposed rule to adopt the new reporting requirements is scheduled for March 27, 2015 and the agency intends to adopt the new requirements on May 5, 2015. However, the effective date is unclear.

Arizona has submitted a request to Governor Ducey to proceed with proposed rulemaking adopting the new reporting requirements and is currently waiting for a response from the Governor’s office. The remaining state plans are currently evaluating the new federal reporting requirements but have not indicated when they will adopt and implement them. To ensure compliance, employers are encouraged to continue to monitor the various state plans progress in adopting these new requirements.

OSHA Internal Memo Outlines Triage Process for Reported Fatalities & Injuries

Effective January 1, 2015 employers in states with Federal OSHA jurisdiction must report to OSHA all work-related fatalities (that occurs within 30 days of the work-related incident) within 8 hours of learning of the fatality, all work-related in-patient hospitalizations, all amputations and all losses of an eye within 24 hours of the work-related incident.

In order to manage the influx of new reported injuries, OSHA’s Deputy Assistant Secretary, Dorothy Dougherty issued an internal memo to all Regional Administrators on December 24, 2014 outlining interim enforcement procedures for the new reporting requirements.

This twenty some page policy provides Regional and Area offices with instructions for the intake of reports, the input of reports to OSHA’s online database, and the triage of reports that will be inspected and investigated.

Continue Reading

OSHA Calls Special ACCSH Meeting on Crane Operator Qualification Proposed Rule

The Advisory Committee on Construction Safety and Health (“ACCSH”) is an advisory body that provides advice and assistance to OSHA regarding construction standards. There are 15 members of this advisory committee comprising representatives for employers, employees, federal, state and public representatives. ACCSH generally meets two to four times a year.

ACCSH recently met in December 2014. During this meeting Mr. Maddux, OSHA’s Director for the Directorate of Construction indicated that OSHA anticipated presenting ACCSH with draft regulatory text regarding crane operator qualification/certification at the spring ACCSH meeting.  The draft regulatory text is intended to address the following: (1) whether certification of an operator means the operator is qualified to operate the crane or whether the employer must make a separate and independent determination that the operator is qualified, (2) whether certification must address both the type and capacity of the crane the operator is being certified to operate, and (3) provide more explicit training requirements.

OSHA has called a special meeting for ACCSH members to “consider a proposed rule to revised OSHA’s crane operator qualification requirement in the Cranes and Derricks in Construction standard.” Based on this notice for a special meeting it appears that the Agency has a draft proposed rule that it will present to ACCSH for consideration.

According to the Federal Register Notice the tentative agenda for the meeting will include a presentation on OSHA’s Proposed Rule to revise the Crane Operator Qualification requirement in the Cranes and Derricks in Construction standards (29 CFR Part 1926, Subpart CC) and discussion and consideration by ACCSH of OSHA’s proposed rule revisions.

The meeting is open to the public and public comments are permitted. The meeting will be held in Washington D.C. at the U.S. Department of Labor from 9 a.m. to 5 p.m., Tuesday, March 31, 2015 and from 9 a.m. to 1 p.m., Wednesday, April 1, 2015.

A copy of the Federal Register notice can be found online.

 

 

 

The Amendments to the Heat Illness Prevention Plan

Written by Alka Ramchandani

On February 20, 2015, the California Occupational Safety and Health Standards Board voted on new changes to the Heat Illness Prevention regulation. The Standards Board voted 5-1 to approve the proposed amended statute. Marley Heart, Executive Director of the Standards Board, requested the Office of Administrative Review to allow for an early effective date. The Office of Administrative Law is responsible for reviewing administrative regulations proposed by the Standards Board to ensure that they are compliant with the California’s Administrative Procedure Act. The Office will transmit this amendment to the Secretary of State for publishing in the California Code of Regulations. We expect that the new regulation will be rolled out at the beginning of the heat season, in May of this year.

Employers should promptly update their heat illness prevention plans and train their employees for compliance with the new regulations. What follows below is a quick summary of the amendment to help you revise your plan and get ready for this year’s heat season.

Potable Water Requirements

The heat illness regulation previously stated that employers had to provide employees with access to potable drinking water that was clean and maintained through individual dispensers, faucets, or drinking fountains. The Division of Occupational Safety and Health previously cited employers for not providing continuous water to employees and for failing to ensure that the employees have properly marked dispensable cups or bottles to obtain clean water. The regulation also provided that where the employer cannot otherwise continuously supply or replenish employees’ water (e.g. with a mobile crew that is located off-site), that it shall provide water in sufficient quantity at the beginning of the shift. The employer must provide each employee with a minimum of one quart of water per hour for the entire shift. The amendment now also states that the water must be fresh, pure, suitably cool, and provided free of charge to employees. Additionally, the water must be located as close as practicable to the areas where employees are working, unless the employer can demonstrate infeasibility.

Shade Requirements

Prior to the amendment, employers were obligated to provide shade to at least 25% of the employees on shade only when the temperature exceeded 85 degrees.

Now the amendment requires that the employer provide shade when the temperature exceeds 80 degrees and so that it can accommodate the total number of employees on recovery or rest periods. The employer must provide enough shade during meal breaks to accommodate the total number of employees that remain outside. In addition, the shaded area has to be located as close as practicable to the areas that employees are working.

Preventative Cool-Down Rest Periods

The heat illness regulation requires employers to allow and encourage employees to take a minimum of five-minutes for a cool-down rest period if they feel they needed to protect themselves from overheating. Now in addition to allowing and encouraging employees to take cool-down rest periods, employers are required to monitor and ask employees taking rest periods whether he or she is experiencing symptoms of heat illness. Employers are to encourage employees taking a rest period to remain in the shade. Employers are prohibited from ordering employees to work until signs or symptoms of heat illness have been abated.

High-Heat Procedures

Employers have to implement high-heat procedures when the temperature equals or exceeds 95 degrees Fahrenheit. Employers have to ensure that there is effective communication between supervisors and employees. Employers are also obligated to observe employees for alertness and signs or symptoms of heat illness.

In addition to these procedures, the amendment requires that employers assertively monitor employees by instituting: a one supervisor to twenty or fewer employee ratio, a mandatory buddy system, a regular communication through electronic device routine with each employee, or another effective means of communication. Employers are also obligated to designate one or more employees on each worksite as authorized individuals for emergency medical services. If there is no designee on shift, employers must instruct other employees to call for emergency services when required.

The amendment requires pre-shift meetings that must take place before the commencement of work on each shift during high heat conditions. The shift meetings should: review high heat procedures, encourage employees to drink plenty of water, and remind employees of their right to take a cool-down rest break when needed.

Agricultural employers now have additional requirements such as providing employees with ten minute cool down rest periods every two hours. The amendment also clarifies cool-down rest breaks and their impact on the mandatory meal and rest breaks required under the California Industrial Wage Orders and California Labor Code Section 226.7.

Emergency Preparedness Requirements

High-Heat emergency response preparedness requirements now must include: (1) an effective communication with employees by voice, observation, or electronic means; (2) an effective response with first aid measures; and (3) procedures for contacting emergency responders to help stricken workers.

Acclimatization

Employers are to assign supervisors to closely observe and monitor employees during a heat wave. A heat wave is defined as temperatures over 80 degrees Fahrenheit or anytime the temperature is ten degrees higher than the average high daily temperature in the preceding five days. Employers must closely monitor a new employee for the first 14 days of his or her employment in a high heat area.

Training

In addition to all of the previous training requirements, the amendment now specifically requires employers to train employees in: (1) the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid; (2) the employees’ right to exercise their rights under this standard without retaliation; (3) first aid and emergency response procedures; and (4) concepts and methods of acclimatization.

Heat Illness Prevention Plan

The amendment increased the requirements of heat illness prevention plans. The employer must establish, implement, and maintain an effective heat illness prevention plan in both English and in any language understood by the majority of the employees. The plan must be made available to employees at the worksite and to representatives of the Division upon request. The Heat Illness Prevention Plan may be included as part of the employer’s Illness and Injury Prevention Program but must specifically include procedures for the provision of water and access to shade, high heat procedures, emergency response procedures, and acclimatization methods and procedures.

***

The voluminous changes to the heat regulation are sure to create a large wave of citations this spring and summer. There are tips that you can follow to protect your companies.

10 Tips for Compliance:

  1. Review your heat illness and prevention plan and amend it so that it reflects the new requirements including potable water requirements, shade requirements, preventative cool-down rest periods, high heat procedures, acclimation, and training policies and procedures.
  2. Review your employee handbook for cool-down rest periods and make sure it is consistent with the new regulations.
  3. Review or create new policies and procedures for monitoring employees taking cool-down rest periods.
  4. Review or create new plans to monitor employees in high heat conditions by instituting a one supervisor to twenty or fewer employees ratio, a mandatory buddy system, or a consistent practice for supervisors to check in with employees.
  5. Review your emergency preparedness plan and make sure it has a designed individual who can call for emergency services when needed.
  6. Make sure your emergency preparedness plan includes an effective communication with employees by voice, observation, or electronic means, an effective response with first aid measures, and procedures for contacting emergency responders to help stricken workers.
  7. Closely monitor temperature changes to ensure that you are following the amendment’s acclimatization requirements.
  8. Conduct a site inspection at each of your California facilities to ensure that shade and water is being provided as close as practicable to the areas employees are working.
  9. Train your employees and supervisors on the revised heat illness plan and procedures, cool-down rest breaks, and monitoring procedures. Retrain your employees on how to prevent heat illness.
  10. Call your attorney for advice on how to revise your plan and procedures.

You can read the text of the amendment at https://www.dir.ca.gov/oshsb/documents/Heat_illness_prevention_txtbrdconsider.pdf