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OSHA Law Blog

FAA and OSHA MOU Effective August 26, 2014

In August, 2013 we posted an article “OSHA in the Sky – FAA Policy on Application of OSHA Standards for Aircabin Crewmembers” – reporting on the FAA’s August 27, 2013 final policy statement outlining three areas where OSHA could regulate for cabin crewmembers  while on board an aircraft in operation. Flightcrew members (i.e. pilots and co-pilots) do not fall within the definition of “cabin crewmembers” and, therefore, are not covered by the new regulations. The three standards which OSHA began enforcing are: hearing conservation standard (29 C.F.R. § 1910.95), bloodborne pathogen standard (29 C.F.R. § 1910.30), and hazard communication standard (29 C.F.R. § 1910.1200). Although the policy took effect on September 26, 2013, OSHA only began enforcing the standards this year on March 26, 2014.

The recent Memorandum of Understanding which became effective on August 26, 2014, spells out the procedural process whereby the FAA and OSHA will enforce those three standards. Complaints or referrals received by OSHA pertaining to noise, bloodborne pathogens and/or hazard communication will be subject to OSHA’s phone/fax method. Under this “inspection” method, OSHA will respond to a complaint or referral by telephoning the employer, describing the alleged hazard, and follow up with a fax or letter. The employer then will have 5 days to respond to OSHA in writing, identifying any hazards it has found and the corrective action taken or planned to fix the hazard(s). If OSHA is satisfied with the employer’s response, an onsite inspection is unlikely and the only action will be to send a copy of the employer’s response to the employee who filed the original complaint. If the employee is not satisfied with the employer’s response, he/she may request an onsite inspection. In the event that an inspection would be required while an aircraft is in operation, OSHA and FAA will coordinate the process.

OSHA and the FAA will meet semi-annually for the next two years to monitor the implementation of the policy statement. There are no plans to expand the scope of OSHA’s jurisdiction over airline aircabin crewmembers beyond these three standards, and the previously approved regulations on recordkeeping and access to employee exposure and medical records.  However, should a decision be made in the future to add more standards, OSHA and the FAA will go through a process, including notifications in the Federal Register, similar to the process they went through to implement the hearing conservation standard (29 C.F.R. § 1910.95), bloodborne pathogen standard (29 C.F.R. § 1910.30), and the hazard communication standard (29 C.F.R. § 1910.1200).

To read more about this, go 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:

OSHA, NIOSH Issue Guidance on Temporary Worker Safety. OSHA and NIOSH have teamed up to produce a guidance document featuring safety and health best practices for employers and temporary staffing agencies which supply labor to them.

Split Commission Holds MSHA POV Rule Valid. The Federal Mine Safety and Health Review Commission has held that MSHA’s pattern of violations (POV) rule is “facially valid,” but that opinion was not rendered unanimously.

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.

Final Rule Issued for OSHA Recordkeeping Requirements

In a press release issued September 11, 2014, OSHA announced the final rule for Occupational Injury and Illness Recording and Reporting Requirements.  For Federal Plan States, the regulation will come into effect on January 1, 2015; State Plan States will announce their dates independently but are encouraged to meet the same deadline.  This regulation brings some major new changes for employers.  Dr. Michaels cited the most recent Bureau of Labor Statistics (BLS) report that 4,405 workers were killed on the job in 2013 to emphasize the importance of this new rule.

Establishments in certain low-hazard industries are partially exempt from routinely keeping OSHA injury and illness records.  Under the new rule, there will be a shift in the number of industries which are partially exempt from keeping these records.  Previous regulations used the Standard Industrial Classification (SIC) system to categorize industries.  The new rule now relies on the North American Industry Classification Systems (NAICS), along with injury and illness data from BLS from 2007 through 2009 to categorize the industry as low-hazard and exempt employers from OSHA recordkeeping requirements.  As a result of this update, employers in several new industries are now required to keep OSHA injury and illness records.  A list of these new industries can be found at https://www.osha.gov/recordkeeping2014/reporting_industries.html. The new rule maintains the exemption for any employer with 10 or fewer employees from the requirement to routinely keep records of worker injuries and illnesses. 

The rule expands the list of severe injuries which all OSHA-covered industries must report to OSHA, regardless of size or partial exemption status.  The current rule stipulates that when there is a fatality or three or more hospitalizations, the employer must inform OSHA within 8 hours of the occurrence.  Under the new rule, a fatality (within 30 days of the work-related incident) must still be reported within 8 hours of the death.  However, employers will now have a 24 hour window in which to report to OSHA all work-related inpatient hospitalizations that require care and treatment of a single employee, all amputations, and all losses of an eye which occur within 24 hours of the incident. 

The available methods of reporting by the employer have also been expanded.  In addition to calling OSHA’s confidential number (1-800-321-OSHA), or calling the local OSHA Area Office, employers will be able to go to the web portal which OSHA is developing, and make a report electronically. 

OSHA has stated that not all reported incidents will lead to an inspection.  OSHA noted, however, that hospitalization and partial body loss are significant events that indicate serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment.  OSHA said in its press teleconference that it sees a report as opening a dialog with the employer and that its decisions regarding whether an investigation will be opened will be case-specific.  OSHA is most interested in knowing what caused the injury, what the employer intends to do as a result of the incident, and putting the employer on notice – all of which it expects will make an employer more likely to take the necessary steps to rectify the situation.  Based on OSHA’s conversation(s) with an employer, OSHA indicated that it may decide to take no further action, roll the employer straight into a consultation program, or conduct an inspection. 

Significantly and most troubling, OSHA also stated during its press teleconference today that it will make an employer’s report of all fatalities, hospitalizations, amputations, or eye losses publicly available on the OSHA website.  OSHA stated that it believes that public disclosure will incentivize employers to ensure a safe workplace for their employees. 

To learn more about this, you may view the new rule at https://www.osha.gov/recordkeeping2014/NAICSReporting.pdf .


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:

‘Major Issues’ Affect Cal/OSHA’s Mission Capability, Federal OSHA Says. The California Division of Occupational Safety and Health, better known as Cal/OSHA, is so understaffed the agency is challenged to fulfill its mission, federal OSHA said in its annual monitoring and evaluation report of the state agency.

Judge Denies MSHA’s Motion for Temporary Economic Reinstatement in Discrimination Case. A mine employee sought temporary economic reinstatement after filing a discrimination claim over alleged safety issues, but a judge has ruled physical reinstatement is the only available remedy.

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 NIOSH Release Recommended Practices for Protecting Temporary Workers

In keeping its momentum on temporary workers, on August 25, 2014, OSHA and NIOSH released a joint publication outlining recommended practices for staffing agencies and host employers using temporary workers.

This publication follows the July 15, 2014 memorandum that was issued to Regional Administrators providing instructions to compliance officers who conduct inspections at worksites with temporary workers.  That memorandum instructs compliance officers to review contracts between the host employer and the staffing agency to determine if safety and health responsibilities are spelled out in the contract, and also instructs compliance officers to consider whether host employers and staffing agencies have met their responsibilities for the safety and health of temporary workers.

The OSHA NIOSH publication reiterates OSHA’s position that staffing agencies and host employers are joint employers of temporary workers and “the extent of the obligations of each employer will vary depending on workplace conditions and should therefore be described in the agreement or contract between employers.”

The publication identifies the following best practices recommended by OSHA and NIOSH:

  • Evaluate the Host Employer’s Worksite
    • Host employer and staffing agency should both review all worksites where temporary workers may work, all task assignments and job hazard analyses
    • Staffing agency should consider using third party safety and health consultants, such as those provided through workers compensation insurance, to assist in determining the conditions temporary workers may be exposed to
    • Staffing agency may consider performing inspections of the workplace of temporary workers
  • Train Agency Staff to Recognize Safety and Health Hazards
    • Trainstaffing agency’s staff on basic safety and health hazards, as well as hazards commonly found in workplaces, so they are easily identifiable
  • Ensure the Employer Meets or Exceeds the Other Employer’s Standards
    • Host employer and staffing agency should consider exchanging safety and health programs
    • Host employer should review training and certification or documentation of temporary workers trained by staffing agency
  • Assign Occupational Safety and Health Responsibilities and Define the Scope of the Work in the Contract
    • Contracts should identify which employer is responsible for specific safety and health duties, such as training
    • Contracts should identify the tasks or work that temporary workers will be assigned and expected to perform
    • Contracts should identify who is responsible for communicating with the temporary worker
  • Injury and Illness Tracking
    • When a temporary worker suffers a work related injury or illness, host employer and staffing agency should communicate with each other to notify the other of such injuries or illnesses
    • The employer responsible for the day-to-day supervision of the temporary worker is responsible for complying with injury and illness recordkeeping
    • Contracts should identify which employer is responsible for the day-to-day supervision and specify that employer as responsible for maintaining the temporary worker’s injury and illness records
  • Conduct Safety and Health Training and New Project Orientation
    • Staffing agency should provide general safety and health training
    • Host employer should provide specific training applicable to the hazards in the workplace
    • “Host employers should provide temporary workers with safety training that is identical or equivalent to that provided to the host employers’ own employees performing the same or similar work”
    • Safety and health orientations should be provided jointly or separately by the host employer and staffing agency
  • Injury and Illness Prevention Program
    • OSHA and NIOSH recommend that each employer have a safety and health program
  • Maintain Contact with Workers
    • Staffing agency should have methods in place to maintain contact with its temporary workers

While the above list is merely a list of “recommendations” or best practices, staffing agencies and host employers can expect that during an OSHA inspection, compliance officers will be looking at whether employers have implemented any of these practices.

A copy of this publication can be found here.

OSHA Guidance on Fall Protection for Communications Tower Employees

OSHA recently updated its compliance directive and enforcement policy related to safety and health issues associated with work on Communications Towers.  This update follows a letter that OSHA sent to employers reminding them of their duty to (1) provide appropriate fall protection to employees; (2) make sure that fall protection is consistently used; and (3) adequately train employees on the use and importance of the equipment.  The new directive provides guidance on “the proper use of hoist and other fall arrest systems and includes detailed information on how to hoist people safely.”  To read more, go to https://www.osha.gov/doc/topics/communicationtower/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:

NLRB to Advise of Labor Law Rights If Violations Revealed During Investigations. Regional offices of the National Labor Relations Board (NLRB) that learn of an apparent violation of federal safety and health or wage and hour standards have been directed to advise the party providing the information of his or her right to file complaints with the Department of Labor (DOL).

Brake Failure an Imminent Danger But Unlikely to Produce Harm. The failure of the brakes to stop a mining machine on a steep grade was rightly designated as an imminent danger, but there was insufficient evidence to classify the resulting citation as reasonably likely to lead to injury, a judge has ruled.

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 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.