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OSHA Law Blog

OSHA Issues First Interpretation Letter Regarding New Reporting Requirements

On January 1, 2015, OSHA’s new reporting requirements became effective.  Under the new reporting requirements contained in Section 1904.39 employers are now required to report to OSHA any work-related hospitalization of one or more employee, an amputation, an eye loss or fatality.

In a December 16, 2014 interpretation letter, OSHA responded to a question on how to distinguish between an amputation, which is reportable, and an avulsion, which is not reportable.  In addressing this question, OSHA stressed that in determining whether an amputation has occurred, employers should rely on the diagnosis of a health care professional.  However, OSHA clarified that the types of avulsions that do not need to be reported include, “deglovings, scalpings, fingernail and toenail removal, eyelid removal, loss of a tooth, and severed ears.”

OSHA also clarified that merely the loss of sight is not reportable.  OSHA stated, “loss of an eye is the physical removal of the eye….[l]oss of sight without the removal of the eye is not reportable under the requirements.” However, if the loss of sight resulted in an employee’s hospitalization within 24 hours of the work-related incident then the hospitalization, not the loss of sight, would be reportable.

A copy of this interpretation letter can be found on OSHA’s website here.

Winter Weather

Stepping outside this week is a biting reminder that winter has arrived. OSHA has updated its website with information about winter hazards and the steps that can be taken to protect employees.  Although there is no specific standard covering winter weather, employees are protected by the Occupational Safety and Health Act (1970) General Duty Clause or Section 5(a)(1), which requires employers to provide employees a workplace free from recognized hazards.  This is a good time for employers to review their cold weather work practices.

In order to plan accordingly, it is essential that employers understand the potential dangers posed by the weather and familiarize themselves with the terminology used by meteorologists and the medical community.  Icy conditions or heavy snow can lead to slick or blocked roads and downed power lines.  Although people may be advised to stay off the roads in these conditions, such advice is impracticable for workers such as EMTs, snow plough operators, and power company employees.   According to OSHA, environmental cold exposes workers to the risk of cold stress. Any worker exposed to cold temperatures is susceptible to cold stress but extra attention should be paid to workers whose work necessitates them being outside, employees with health conditions such as heart disease or high blood pressure, new employees who may not be accustomed to the conditions, and workers who are returning to work after an absence.

In addition to OSHA’s webpage on “Winter Weather” there are other tools available to help an employer assess the situation and take the necessary precautions to protect their workers.  The American Conference of Governmental Industrial Hygienists (ACGIH) has published a chart entitled “Work/Warm-up Schedule for a 4-Hour Shift” which provides a clear model for employers to determine the length of time someone can work under decreasing weather conditions.  https://www.osha.gov/dts/weather/winter_weather/windchill_table.pdf

According to OSHA, employers can help alleviate the risks of cold stress by adapting work schedules to the weather conditions: implementing safe practices such as limiting the amount of time workers are outside, scheduling frequent breaks, providing hot, sweet drinks (e.g. tea but NOT alcohol); providing engineering controls, including providing radiant heat and protecting workers from drafts.  Additionally, employers should monitor workers for signs of cold stress, especially those employees previously mentioned.

Environmental cold can lead to cold stress which occurs when lower skin temperature gives way to a lower core temperature.  A person’s body temperature will cool down faster when there is a wind chill.  The most common types of cold stress include: frostbite (freezing, usually of the extremities, e.g. fingers and toes, which can lead to amputation of the affected area); hypothermia (characterized by a core body temperature falling below 95° F, can be fatal); chilblains (ulcers caused by repeated exposure of skin to cold temperatures); and trench foot (result of extended periods of cold, wet feet).  See NIOSH’s Fast Facts sheet – http://www.cdc.gov/niosh/docs/2010-115/pdfs/2010-115.pdf

According to OSHA employers should train employees about these hazards. Well-educated employees can contribute to a safer working environment.  Training should at a minimum cover the following areas:

  • What are the dangers?
  • How to recognize the symptoms associated with Cold Stress related conditions
  • Monitoring oneself and co-workers for signs of cold stress
  • How to dress appropriately for the weather (i.e. layers of loose clothing)
  • First Aid in the case of emergency.

OSHA’s Quick Card “Protecting Workers from Cold Stress” is a concise, easy to read reference sheet identifying the most common cold stress health hazards, how to recognize them, and the emergency measures to be taken if you suspect someone is suffering from cold stress.  See https://www.osha.gov/Publications/OSHA3156.pdf

Employers whose employees use company vehicles or who work around vehicles, it is also essential for vehicles to be properly maintained and equipped for severe driving conditions.  Depending on the work environment, additional training of employees may be advisable.  Suggested topics of training might include:

  • Work zone traffic safety
  • What to do if you are stranded in a vehicle
  • How to safely shovel snow
  • The use of equipment such as snow blowers
  • Working at heights
  • Walking safely to prevent slips, trips, and falls
  • Repairing downed or damaged power lines or being in the vicinity of downed or damaged power lines

See https://www.osha.gov/dts/weather/winter_weather/hazards_precautions.html.

OSHA has published comprehensive materials about winter weather.  These may be viewed at https://www.osha.gov/dts/weather/winter_weather/index.html

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:

Mine Safety Commission Rejects Lessened Penalties Set by Judge in Two Cases, but Upholds Reduction in a Third. Saying the judge got it wrong, the Federal Mine Safety and Health Review Commission has overturned an administrative law judge’s (ALJ) sharp reduction in fines for two MSHA violations, but left standing the judge’s reduction ordered in a third.

OSHA Sets Record for Whistleblower Investigations. A milestone has been reached in federal whistleblower cases: OSHA has investigated more than 3,000 cases in a fiscal year for the first time ever.

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 Considers Use of Kinesiology Tape as Medical Treatment

In a letter of interpretation to Ms. Linda Ballas dated December 12, 2014, OSHA clarified 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. 

Under 29 CFR Part 1904 – Recording and Reporting Occupational Injuries and Illnesses, treatment of an injury with first aid does not trigger the recordkeeping requirements.  Section 1904.7(b)(5)(ii) defines what is considered “first aid” which includes the use of “any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc.”

Kinesiology tape was developed by Dr. Kenzo Kase in the mid-1970s.  Therapeutic kinesiology tape is a type of strapping tape which is thin and stretchy.  It is adhesive which allows it to be applied to the body rather than being wrapped like an Ace® bandage.   It mimics the properties of human skin in thickness and elasticity.  Its uses include treating musculoskeletal injuries and inflammatory conditions. Some of its appeal lies in the fact that it can be worn for several days, including while exercising or bathing, and it does not restrict the patient’s range of motion. 

It is likely most employers consider the use of kinesiology tape as first aid, similar to elastic bandages or wraps.  However, OSHA has looked beyond the mere physical properties of kinesiology tape and placed a greater emphasis on its design and purpose.  In the letter of interpretation, OSHA said:

“The use of kinesiology tape is akin to physical therapy and is considered medical treatment beyond first aid for OSHA recordkeeping purposes. See Section 1904.7(b)(5)(ii)(M).”

Although skeptics cite the lack of hard scientific studies to support the medical benefits of kinesiology tape, OSHA has chosen to rely on those claims in deciding that its use goes beyond first aid.  So although using an ACE® bandage is considered first aid, OSHA has decided that kinesiology tape is materially different and its use “is akin to physical therapy” which makes it medical treatment beyond first aid and therefore its use for a work-related injury is recordable.

In an article published by Bloomberg BNA, Ms. Ballas said that she wrote the letter to OSHA to seek clarification about the tape which some of her clients wanted to use with the understanding that it would fall into the first aid reporting exception.  She went on to say that based on OSHA’s letter of interpretation, those same clients would not use kinesiology tape but would seek to use other treatments which fall within the parameters of “First Aid” as defined by OSHA.  

The letter of interpretation may be found online.

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:

Operator’s Delay in Beginning MSHA Inspection Not Unreasonable, Judge Rules. While delaying the start of an MSHA inspection for about 30 minutes could be an offense under the Mine Act, MSHA was unjustified under the circumstances in citing a Montana sand-and-gravel operation for its alleged indirect denial of entry to an MSHA inspector, a Review Commission judge has ruled.

OSHA Cites Employer, Staffing Agency after Accident. A Wisconsin-based services company and a staffing agency providing the company with temporary labor were cited by OSHA after a maintenance worker suffered severe burns when he came into contact with an energized electrical source.

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.

ACCSH Debates Employer Recordkeeping Obligations and other OSHA Initiatives

On December 4, 2014, OSHA held an Advisory Committee on Construction Safety and Health (“ACCSH”) meeting.  ACCSH is an advisory body that provides advice and assistance to OSHA regarding construction standards. There are 15 members of this advisory committee and the committee is comprised of representatives for employers, employees, federal, state and public representatives.

In addition to hearing from Assistant Secretary Dr. Michaels and OSHA’s Director of the Directorate of Construction, Mr. Maddux, ACCSH heard presentations regarding OSHA’s Notice of Proposed Rulemaking for additional quantitative fit test protocols and employer obligations regarding recordkeeping and recording injuries and illnesses.

New Quantitative Fit Testing Protocol

Pursuant to 29 C.F.R. § 1910.134(f) employees are required to be fit tested prior to wearing tight-fitting respirators and the fit test administered must be using an OSHA-accepted fit test protocol.

Under Appendix A, Part II for § 1910.134, interested parties are able to submit an application to OSHA for approval of a new fit test protocol.  There are currently four available fit testing protocols: Generated Aerosol Quantitative Fit Testing Protocol, Ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol (PortaCount), Controlled negative pressure (CNP) quantitative fit testing protocol and Controlled negative pressure (CNP) REDON quantitative fit testing protocol.

OSHA recently received an application for new fit test protocols from TSI.  TSI submitted three fit test protocols:  “Fast-Full” method for elastomeric full-facepiece respirators, “Fall-Half” method for elastomeric half-mask respirators and “Fast-FFR” method for filtering facepiece respirators.

According to OSHA, the major differences between the proposed Fast-Full and Fast-Half methods and the OSHA-approved PortaCount protocol are that the Fast-Full includes only 3 of the 7 current test exercises (i.e. bending, head side-to-side, and head up-and-down) plus one new exercised (i.e., jogging-in-place). According to TSI, the Fast-Full method reduces each exercise duration from 60 seconds to 30 seconds, which results in a total test duration of 2.5 minutes rather than 7.2 minutes.   Similarly, the Fast-FFR method includes 4 of the current test exercises and reduces total exercise time from 7.2 minutes to 2.5 minutes.

These submitted fit test methods were evaluated using ANSI standards and met the required acceptance criteria for test sensitivity, predictive value of a pass, predictive value of a fail, test specificity and kappa statistic.

According to OSHA, TSI’s application meets the criteria established pursuant to § 1910.134 Appendix A, Part II and therefore OSHA must initiate a rulemaking to determine whether such new protocols should be added to the accepted fit test protocols.  OSHA requested that ACCSH recommend proceeding with the Notice of Proposed Rulemaking (NPRM).  ACCSH voted and recommended that OSHA proceed with a Notice of Proposed Rulemaking.  OSHA anticipates that a NPRM will be published in the Federal Register in March 2015.

Injury and Illness Recording Obligations

OSHA also sought a recommendation from ACCSH to issue a proposed rule amending the recordkeeping regulations to clarify that an employer’s duty to make and maintain accurate records of work-related injuries and illnesses is an on-going obligation during the five-year retention period.

This agency action is in response to the decision of the United States Court of Appeals for the District of Columbia Circuit in AKM LLC v. Secretary of Labor (AKM), 675 F.3d 752 (D.C. Cir. 2012).  In AKM, OSHA argued that a failure to record an injury or illness is a continuing violation that exists for the duration of the five year retention period.  Relying on the six-month statute of limitations for the issuance of citations, the Circuit Court rejected the Secretary’s argument holding that “ [n]othing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.”

Since the decision was issued in AKM, OSHA has only been permitted to cite employers for the failure to record an injury or illness within six months of the day the employer failed to make the initial record.  OSHA is now trying to rewrite the Court’s decision in an effort to be able to cite employers up to five years later (relying on the five year retention period).

OSHA presented to ACCSH new amendments to the recordkeeping requirements that the agency alleges would provide no new compliance obligations but would allow OSHA to cite up to five years beyond when an employer fails to make the initial record of a work-related injury or illness. OSHA requested that ACCSH recommend the agency move forward with issuing a NPRM to amend the recordkeeping regulations.

After a cordial but polarizing discussion, ACCSH recommended OSHA issue a NPRM amending the recordkeeping regulations.  The vote was split with 9 members recommending the issuance of a NPRM and 5 members opposing such action. The next step will be for OSHA to issue a NPRM.

Copies of the ACCSH meeting minutes and transcripts from the meeting can be found on online at OSHA’s website.

Dr. Michaels Addresses ACCSH and Talks Temporary Workers, Cell Towers, and Reporting Requirements

On December 4, 2014, OSHA held an Advisory Committee on Construction Safety and Health (“ACCSH”) meeting.  ACCSH is an advisory body that provides advice and assistance to OSHA regarding construction standards. There are 15 members of this advisory committee and the committee is comprised of representatives for employers, employees, federal, state and public representatives.

ACCSH’s agenda for this meeting included consideration of a new quantitative fit testing protocol, clarification of an employer’s continuing obligation to record injuries and illnesses and OSHA’s temporary worker initiative.

At the outset of the meeting, Assistant Secretary Dr. Michaels provided the committee with an update on various matters, including temporary workers, communication cell towers, confined space in construction and the new reporting requirements.  Dr. Michaels highlighted a few agency activities including temporary workers and specifically the agency’s focus on changing the environment in this industry.  According to Dr. Michaels “the bottom line is that the host employer has to provide a safe work place.”

Dr. Michaels also highlighted the agency’s efforts regarding communication cell towers, noting that the agency recently held a joint meeting with the Federal Communications Commission (FCC) along with representatives from major cell carriers, builders and unions.  OSHA anticipates issuing a Request for Information (RFI) in the Federal Register seeking input from impacted stakeholders on various issues related to communication cell towers.

Regarding confined spaces in construction, Dr. Michaels indicated that in November the final rule went to the Office of Management and Budget (OMB) and since then OSHA has had discussions with OMB about the final rule.  Dr. Michaels noted that the final rule is different from the proposed rule and aligns more with the general industry standard.  According to Dr. Michaels, while the final rule differs from the proposed rule, he believes that employers will be pleased with the final rule.  Dr. Michaels anticipates a final rule will be issued in the next few months.

With respect to the new reporting requirements that take effect January 1, 2015, Dr. Michaels noted that when employers call in to report a reportable event (fatality, amputation, in-patient hospitalization, or eye-loss) that OSHA will engage in a conversation with the employer.  According to Dr. Michaels this is a new approach for the agency, however, he claimed that the agency’s objective is to help employers.  When OSHA is notified of a reportable event the agency will inquire as to how the event occurred and what type of investigation the employer is or will do to determine the cause.  Additionally, Dr. Michaels stated that OSHA will have a new website up by January 1st which will allow employers to report online.

At the conclusion of Dr. Michaels’ presentation the committee was updated on activities within the Directorate of Construction by Director, Mr. Jim Maddux.

Mr. Maddux addressed several questions pertaining to cranes and operator certification.  Mr. Maddux was asked whether employers can train crane operators pending a final agency decision on operator certification and, if so, what does adequate training look like.  In response, Mr. Maddux referenced the general requirement that crane operators must be competent to do their job and suggested that employers consider some type of assessment of competency such as an interview with the operator to determine whether the operator has the necessary skills to operate a crane.  Additionally, Mr. Maddux noted that OSHA anticipates presenting ACCSH with draft regulatory text regarding crane operator certification at the spring ACCSH meeting.  The draft regulatory text will address the issue of whether certification of an operator means the operator is qualified to operate the crane, the issue of type and capacity and will also likely provide more explicit training requirements.

Copies of the ACCSH meeting minutes and transcripts from the meeting can be found on online at OSHA’s website.

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:

Former Coal Executive Indicted over Mine Tragedy. The former CEO of what once was the fourth largest coal producer in the U.S. has been indicted in connection with the death of 29 miners in an explosion at a West Virginia mine in April 2010.

OSHA’s Nebraska Area Office Launches Emphasis Program on Chemicals. OSHA plans to conduct programmed health inspections at Nebraska funeral homes, chemical and product manufacturing plants, printing facilities, and outpatient care centers in launching a local emphasis program to educate employers and workers about highly hazardous chemicals.

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 Investigates More Temp Agencies

Eighteen months after OSHA announced the Temporary Worker Initiative (TWI), the inspection numbers show that OSHA has been aggressively investigating temporary worker staffing agencies for compliance with OSHA requirements and citing those agencies when violations are found.   

The goal of the TWI is to help prevent work-related injuries and illnesses among temporary workers.  OSHA has emphasized that temporary workers are conferred the same protections as other employees covered under the OSH Act and they should receive the same safety and hazard recognition training that employees receive.  Both the temporary worker staffing agency and the host employer share responsibility for ensuring that temporary workers are safe.  As a result of the TWI, BLS reported that inspections involving temporary worker service agencies increased 322% for fiscal year 2014. This year OSHA has conducted 283 worksite inspections employing temporary workers.  For comparison, there were 67 inspections in 2013 and only 29 inspections in 2012.   

However, violations were found on only 15% of the site visits and a total of 83 citations have been issued to temporary worker staffing agencies.  The most common citations include hazard communication (29 C.F.R. § 1910.1200), occupational noise exposure (29 C.F.R. § 1910.95) and general requirements for personal protective equipment (29 C.F.R. § 1910.132).  It is interesting to note that while federal OSHA inspections increased dramatically, inspections by state-plan OSHA has remained relatively unchanged over the last three years with 242 inspections being conducted this year.  

To read more on this topic, OSHA’s webpage on Protecting Temporary Workers can be found at:

https://www.osha.gov/temp_workers/

 

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 Sets Hearings on Proposal to Revise Civil Penalty Procedures. MSHA has scheduled two public hearings in December to take comments on its proposal to revise civil penalties procedures in connection with citations issued to mine operators under its Part 100 regulations. The hearings were scheduled in response to what the agency said were requests from stakeholders.

Defiance of OSHA Orders has Marshals Looking for Contractor. A judge has ordered the owner of an Illinois contracting company to be taken into custody for defying OSHA orders to correct what the agency has described as serious trenching hazards and for failing to pay fines.

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.