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OSHA Law Blog

Don’t Text and Drive!

April is Distracted Driving Awareness Month and OSHA has taken the opportunity to post a blog on the subject in which it reminds employers that “traffic accidents are the number one workplace killer.” OSHA does not require employers to have any type of a cell phone policy in place but in its “Distracted Driving: No Texting” brochure the Agency notes that “[w]hen your workers are behind the wheel doing your company’s work, their safety is your business.” The brochure goes on to say that if OSHA receives a “credible complaint” that an employer either explicitly or implicitly requires an employee to text while driving, it will investigate and issue citations if warranted. Given that OSHA does not have a specific standard regulating cell phone use and driving any such citations would likely be issued under OSHA’s General Duty Clause.

OSHA would like employers to be proactive by putting policies in place to ensure safe cell phone use. It recommends that employers spell out that texting and driving is prohibited, establish clear work procedures on when and how drivers should communicate with their employer or customers, include safe communication practices in employee training, and eliminate incentives that might encourage employees to text while driving.

To read more go to https://www.osha.gov/Publications/3416distracted-driving-flyer.pdf or http://blog.dol.gov/2015/04/14/protect-workers-from-the-no-1-cause-of-workplace-deaths/.

Request for Information on Communication Towers

In the Federal Register Volume 80, Number 72, dated Wednesday, April 15th, OSHA published a Request for Information (RFI) on Communication Tower Safety. The public comment period is open for 60 days and written comments must be submitted by June 15, 2015. Submissions must be identified by referencing Docket No. OSHA-2014-0018.

In its April 14th news release on this, OSHA pointed out that “[i]n the past 30 years, the increased demand for wireless and broadcast communications has spurred dramatic growth in communication tower construction and maintenance.” OSHA is aware of the safety risks posed by communication tower construction and maintenance activities and the rise in the number of injuries and fatalities suffered by employees. OSHA cites 2013 as being “the deadliest year for communication tower workers since 2006” – 15 incidents resulted in 13 fatalities, 11 of which involved falls, and of those 11 falls, 9 were fatal. The news release goes on to say that the actual number of fatal and non-fatal incidents is probably higher because these numbers only reflect OSHA ‘s investigation data from the Integrated Management Information System (IMIS) which does not cover incidents for individuals not covered by OSHA, e.g. the self-employed. Additionally, the information contained in the database was generally restricted to situations involving at least one fatality and/or three or more hospitalizations. The Agency is seeking information which will help guide it in deciding the best way it can proceed to help prevent injuries and fatalities during tower work. It is hoping to learn more about what kinds of hazards workers face, the types of incidents (fatal and non-fatal), and what employers are doing to address those hazards.

Communication Towers which carry antennas for wireless, cellular, radio or broadcast television communications, can range anywhere from 100-1000 feet in height. According to OSHA, the hazards involved in constructing and maintaining these towers include fall hazards, structural collapses, struck-by hazards, hazards precipitated by worker fatigue, radio frequency hazards, and inclement weather. The situation is complicated further by the fact that there are very often multiple employers involved, and layers of contractors and subcontractors performing the work. OSHA is looking for information regarding the causes of employee injuries and fatalities and the safe work practices and training which might be implemented.

At present, there is no standard specifically covering communication tower construction and maintenance, nor do the current standards provide comprehensive coverage for every activity involved. Fall protection is covered in part by OSHA’s standards for fall protection in construction (29 C.F.R 1926, Subpart M). However, this does not cover construction of new communication towers which falls under 29 C.F.R § 1926.105. Additionally, communication tower construction is exempt from OSHA’s requirements for steel erection activities (29 C.F.R 1926, Subpart R). OSHA’s general industry standards (29 C.F.R Part 1910) applies to maintenance work on communication towers while the telecommunications standard at 29 C.F.R § 1910.268 addresses, for example, training (§ 1910.268(c)). At times when none of these standards apply, OSHA has invoked the General Duty Clause of the Occupational Safety and Health Act of 1970 which requires employers to provide a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.” Additionally, OSHA relies upon some consensus standards, such as The Telecommunication Industry Association standard TIA-222-G. Finally, two states, North Carolina and Michigan, have been prompted to enact their own communication tower standards.

OSHA’s RFI includes 38 specific, detailed questions spanning 4 pages regarding the information it is seeking. The first set of six questions are posed directly to Tower Climbers and asks them what kind of hazards they encounter, what they do to carry out the work in a safe manner, what safety-related work practices they would suggest, who instructs them as to how to do the work safely, what materials and training are they provided, who supervises them, their training, and the equipment used, what do they think can be done to improve safety, and how does the actual design or configuration of the towers affect their ability to safely complete their tasks.

The remaining questions are split into sections addressing: Training and Certification (there is currently no standard threshold for certification); Suitability for Work; Hazards and Incidents (further split into falls, structural issues, hosting materials and personnel, radio frequency hazards, weather, and other common hazards); Contracting Work and Oversight; Economic Issues (concerning number and size of companies, wage and worker turnover rates, equipment used and maintenance/replacement records, and whether employees are covered by workers compensation or an employer liability insurance policy); Tower Design; and, Regulatory/Non-Regulatory Approaches. OSHA has requested that when submitting comments, commenters state clearly their role in the communication tower work process and also give detailed answers.

Interestingly, in its introduction OSHA notes that “[i]ncreasingly, antennas are being installed on structures other than communication towers, e.g., on water towers, on electrical and telephone poles, and on the roofs of buildings. These alternative structures are often used in more densely populated areas where the construction of large communication towers is impractical or impossible, e.g., due to zoning restrictions”. Presumably, OSHA is intending to include these “structures” in its RFI. However, it is not entirely clear given that the RFI specifies that these are “structures other than communication towers,” and it does not explicitly include them in the information it is seeking.

The full text can be read at https://www.osha.gov/FedReg_osha_pdf/FED20150415A.pdf

 

 

 

Expiration of the Nursing Home NEP, Effective April 5, 2015

A memorandum dated April 2, 2015 from Thomas Galassi, Directorate of Enforcement Programs, reminded Regional Administrators that the National Emphasis Program (NEP) on Nursing and Residential Care Facilities, was expiring, effective April 5, 2015.   (The NEP had focused on specific hazards such as ergonomics, bloodborne pathogens, tuberculosis, workplace violence, and slips, trips, and falls in covered nursing and residential care facilities.) The memorandum notes however that all programmed inspections on existing lists will be completed and any unprogrammed inspections which meet NEP criteria shall proceed following NEP guidelines.

Despite the expiration of the NEP, the Agency signals its intent to issue updated guidance that instructs OSHA offices to allocate resources to focus on inpatient healthcare facilities (e.g., hospitals and nursing and residential care facilities) where the occupational illness and injury rates are higher than the BLS average for these industries.   The memo can be read in full here.

California Amendments to Heat Stress Standard Effective in May

In February Jackson Lewis published an article about Cal-OSHA’s proposed changes to its Heat Illness Prevention standard which were approved by a vote of 5-1 by the California Occupational Safety and Health Standards Board. On April 8, California announced that the changes will become effective on May 1, 2015. The changes effect potable water, shade requirements, preventative cool-down, high heat procedures and emergency preparedness. You can read the article in full, including our 10 Tips for Compliance, at http://www.oshalawblog.com/2015/02/articles/the-amendments-to-the-heat-illness-prevention-plan/.

OSHA Issues New Guidelines on Workplace Violence Prevention for Healthcare

OSHA released an update to its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. The publication includes industry best practices and provides some insight on how to reduce the risk of violence in various healthcare and social service settings.  To protect against violence, OSHA recommends that healthcare providers develop an effective workplace violence prevention program that includes:  (1) Management commitment and employee participation; (2) Worksite analysis/Tracking and Trending; (3) Hazard prevention and control; (4) Safety and health training; and (5) Recordkeeping and program evaluation.  In the Guidelines, OSHA provides several detailed charts to assist employers in navigating and implementing these program elements.

In the Guidelines, OSHA indicates that healthcare and social service workers face a significant risk of job-related violence.  According to the Bureau of Labor Statistics (BLS), 27 out of the 100 fatalities in the healthcare and social service industries in 2013 were due to assaults and violent acts.  In addition, 70-74% of all workplace assaults occurred in the healthcare and social service industries and assaults comprised 10-11% of workplace injuries involving days away from work for healthcare workers.

Work-related assaults and other incident of workplace violence primarily result from violent behavior from patients, clients and residents in healthcare and social service settings.  Working directly with people who have a history of violence or who have abused drugs or alcohol increase the risk that an employee can be subject to workplace violence.  Working with the public or with relatives of patients and residents also increases the risk of violence.  Other factors that employers should consider in assessing whether their employees are at risk for workplace violence include:

  • Working with volatile, unstable people
  • Transporting patients, residents or clients
  • Working alone in a facility or in a patient’s home
  • Lack of emergency communication
  • Working late at night or early morning hours
  • Working in poor lit corridors, rooms, parking lots and other areas
  • Working in areas with high crime rates
  • Availability of firearms and weapons
  • Long waits for care and services
  • Overcrowded or uncomfortable waiting rooms

Hospitals, Residential Treatment, Non-residential Treatment, Community Care, and Field work settings may have a number of these risk factors that would warrant the need to create a written violence prevention program with the five program elements.

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OSHA Expands Severe Violator Enforcement Program

In a memorandum dated February 11, 2015, Tom Galassi, Director of Directorate of Enforcement Programs, announced that the Severe Violator Enforcement Program (SVEP) has been expanded to include upstream oil and gas hazards as High-Emphasis Hazards. Interestingly, the memo was not posted on OSHA’s website until late March after being in effect for over a month.

SVEP was introduced in 2010 expressly “to more effectively focus enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees through willful, repeated, or failure-to-abate violations of the OSH Act.” (OSHA “Severe Violator Enforcement Program White Paper” January 2013.) The memorandum states that upstream oil and gas drilling and well servicing employers are being added to SVEP because they “have experienced a fatality rate that has ranged from five to eight times greater than the national average for all U.S. Industries.” [U.S. DOL BLS].

The implications for employers who are classified by NAICS (codes) as Oil and Gas Production Services, Drilling and Well Servicing/Upstream Oil and Gas Industry is that any time an incident meets the SVEP criteria, the case will now be considered a severe violator enforcement case. In a non-fatality inspection, if OSHA finds two or more willful or repeated violations or failure-to-abate notices, it will qualify as a severe violator enforcement case.

The sanctions available to OSHA under SVEP are more extensive including; ability to conduct corporate-wide inspections, mandatory follow-up inspections of the same facility, enhanced abatement and settlement terms, and the publication of a press release for every SVEP citation, as well as posting quarterly on the OSHA website a list of SVEP violators. Enhanced Settlement Agreements (ENHSAs) may require among other things that an employer hires a qualified safety and health consultant; the settlement agreement itself may apply corporate-wide regardless of whether a particular worksite has been cited; and an employer may have to submit its Injury and Illness Logs on a quarterly basis and consent to OSHA conducting inspections based on those logs. Finally, once an employer becomes a “severe violator”, it will keep that classification for at least three years before being eligible for removal from the program.

The February 11th, 2015 memorandum can be read in full at https://www.osha.gov/dep/enforcement/memo_SVEP_oilandgas_022015.html.

OSHA Revises Recent SHARP’s Memorandum

On March 20, 2015, OSHA rescinded portions of its recent memorandum, “Safety and Health Achievement Recognition Program: Updated Size”, after only four-months in response to employers’, state officials’, and Congressional members’ outcries.  As described by Tressi Cordaro in her February 3, 2015 OSHA Law Blog post, the November 24, 2014 memorandum redefined the size requirement for participation in the Safety and Health Achievement and Recognition Program (SHARP), a free consultation program that allowed employers to avoid programmed inspections for two or three years if they meet all the eligibility requirements.  Under the November 24 memorandum, SHARP’s participants who had 250 or more employees at a worksite or 500 or more workers corporate wide and thus failed to meet the new size requirement were required to leave the voluntary program.

In its most recent memorandum, OSHA reversed itself, stating that all SHARP employers that were in the program at the time of the November 24 memorandum could remain in the program and reapply even if they grew beyond the new size requirements.  However, employers who grew beyond the new size requirement would be encouraged to seek participation in OSHA’s Voluntary Protection Program.

The March 20 memorandum also noted that State-plan states could choose to offer larger employers SHARP’s recognition if funded with 100% of State funds but that State-plan consultation programs funded under Section 21(d) of the Occupational Safety and Health Act of 1970 would be expected to follow the procedures and requirements set out by OSHA.

Information about OSHA’s revised policy can be found here.

 

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.

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