OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

President Barack Obama has announced he intends to nominate Professor David Michaels to be the Assistant Secretary of OSHA. Professor Michaels is the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C. If confirmed, Professor Michaels will join Acting Assistant Secretary of OSHA Jordan Barab in the political leadership of the safety and health agency.

In addition to his current position with George Washington University, Professor Michaels has a long history in public health. During the Clinton Administration, Professor Michaels was Assistant Secretary for Environment Safety and Health at the Department of Energy, where he played a role in overseeing safety and health issues for employees at nuclear weapons facilities.

While it is too early to predict Professor Michaels’s likely priorities, in past writings, he has indicated the need for OSHA:  (1) to issue a workplace injury and illness prevention program rule; and (2) to develop an electronic recordkeeping and reporting system. Both would further past and present OSHA initiatives.  

During the Clinton Administration, OSHA developed, but never issued, a Safety and Health Program rule which would have required employers to implement a broader process for preventing injuries and illnesses in the workplace. Should Professor Michaels be confirmed, he may press his interest in an injury and illness prevention program rule, likely reigniting discussions regarding the need for employers to implement safety and health programs at their worksites. 

A potential electronic recordkeeping system also fits neatly into OSHA’s current enforcement efforts. OSHA will be releasing a Recordkeeping National Emphasis Program (NEP) in the next few weeks, which will focus enforcement resources on recordkeeping inspections in certain establishments. OSHA will perform thorough records reviews and investigate the extent to which employers may be discouraging workers from reporting injuries and illnesses. The Department is intent on rooting out underreporting.  An electronic recordkeeping system could make it easier for the agency to monitor worksite injuries and illnesses and possible underreporting.

No information has been released as to when Professor Michaels’s confirmation hearings may be held. This announcement, however, may calm the uncertainty that had been swirling around OSHA as to who would be the permanent political head of the agency.

We will, of course, continue to keep you apprised of developments with respect to the nomination.

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OSHA has announced it is targeting for inspections federal agency workplaces staffed by federal employees or by contractors whose work is supervised on a day-to-day basis by federal agency personnel. The agency initiative will focus enforcement resources on those worksites experiencing a high number of lost time injury cases. Employers who work as contractors to federal agencies should review the targeting program and prepare for a possible inspection – particularly if they have employees performing hazardous work.

The new inspection targeting program – “FEDTARG 09” effective June 16, 2009 – directs inspections at federal agency establishments that experienced large numbers of lost time injuries in fiscal year 2009, as reported by the federal Office of Workers Compensation Programs. OSHA regional offices are directed to develop a primary inspection list that will include 100% of the establishments within the region reporting 100 or more lost time cases, 50% of the establishments reporting 50-99 lost time cases, and 10% of the establishments reporting 20-49 lost time cases. All sites on the primary inspection list must be inspected.

Contractors who are supervised by federal workers should take note of this and prepare. Inspections conducted under FEDTARG 09 will be comprehensive safety inspections. The inspections also will cover ergonomics, with compliance officers instructed to consult with the region’s ergonomics coordinator on musculoskeletal disorder issues.

Should the OSHA compliance officer see contractors performing work that is not being supervised by a federal agency worker, the officer may open up another inspection relating to the contractor specifically, if the compliance officer observes any hazards. In short, contractors performing work on federal agency worksites are fair game under FEDTARG 09.

Acting Assistant Secretary of Labor Jordan Barab, in announcing the program, stated, “OSHA’s mission of protecting worker safety doesn't begin and end with private industry.” That is true. In this instance, however, it does not begin and end with federal employees either. FEDTARG 09 targets both federal agencies and private employers, and both need to be prepared.

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Citing the high number of construction fatalities in Texas, Secretary of Labor Hilda Solis announced recently that OSHA will start a new enforcement initiative targeting the construction industry in that state. Secretary Solis made the announcement in San Antonio at the annual conference of the American Society of Safety Engineers. Construction employers in Texas should take note of this new initiative and ensure that they continue to be fully compliant with OSHA standards.

While there are few details of the new enforcement initiative available, Secretary Solis stated that:

• Beginning in July, OSHA will increase the number of inspectors in Texas; and
• Inspectors will be authorized to launch an immediate investigation of a construction worksite, whenever they observe “unsafe scaffolds, fall risks, trenches or other hazards.”

Secretary Solis stated that in 2008, there were 67 construction fatalities in Texas and in 2009 there already have been 33 fatalities reported. According to the Secretary, more workers die in Texas than in any other state.

This initiative is just one part of OSHA’s expanded enforcement efforts under the new Labor Secretary. OSHA will be hiring over 100 new inspectors and issuing five new National Emphasis Programs.  In San Antonio, Secretary Solis reiterated her commitment to more enforcement: “As I have said since my first day on the job – the U.S. Department of Labor is back in the enforcement business.”

We will, of course, keep you informed as more details of this and other enforcement initiatives become available.

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When OSHA launches its recordkeeping National Emphasis Program (NEP) later this year, employers cannot accuse the agency of inadequate warning. Since early March, OSHA officials have signaled the impending NEP. Employers should take time now to review their OSHA recordkeeping logs and practices to prepare for an NEP inspection.

Just last week, OSHA reminded us how seriously it is taking recordkeeping and the perceived underreporting of occupational injuries and illnesses. The Bureau of National Affairs (BNA) reported on remarks by Acting Assistant Secretary of OSHA, Jordan Barab, at the annual American Society of Safety Engineers convention in San Antonio: 

Barab said OSHA’s pending recordkeeping National Emphasis Program will scrutinize companies in high-risk industries that post strikingly low accident and injury rates. OSHA inspectors will look not only at a company’s records but also its safety policies, he said. In particular, agency inspectors will look for companies that discourage their employees from reporting workplace accidents, Barab said. 

The recordkeeping NEP will involve more than just a standard records review. Employer programs that “discourage” employees from reporting workplace accidents will be targeted by OSHA. Unfortunately, OSHA has not provided additional information on the types of programs it is concerned about. However, OSHA had a provision in the Clinton Administration’s ergonomics standard, which was revoked by Congress and President Bush in 2001, which sought to address a similar concern. OSHA required in that rule that employers not develop policies that discourage the reporting of musculoskeletal disorders (MSDs). In the preamble to the final rule, OSHA suggested that the following could run afoul of this provision: 

• Disciplining employees for reporting injuries, without considering the cause of those injuries;
• Establishing incentive programs that offer rewards to employees or groups of employees based on a low number of reported injuries;
• Implementing programs where manager or supervisor performance reviews or bonuses are tied to the number of reported injuries and illnesses; and
• Instituting drug testing programs, when applied to all workers who report MSDs.

Employers should prepare for an OSHA recordkeeping inspection by taking some time to: 

• Review their 300 logs and 301 incident reports for accuracy;
• Ensure their 300 logs reflect information from the 301 incident reports; and
• Compare all their OSHA recordkeeping forms with any workers’ compensation reports and claims.

As important, employers should look at their safety incentive programs and injury and illness reporting procedures for any evidence that these protocols are discouraging employee reports.

Roger Kaplan, a Partner in Jackson Lewis's Long Island office, contributed to this Post. 

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With summer weather starting to sweep across the country, OSHA has issued guidance on protecting workers from the adverse health effects of heat at work. Employers should take note as OSHA has called excessive heat a recognized hazard and has cited employers under the General Duty Clause of the Occupational Safety and Health Act of 1970 for failing to take feasible steps to address workplace exposures to heat.

The new guidance lists the following factors that can lead to heat stress:
 

• High temperature and humidity;
• Direct sun or heat;
• Limited air movement;
• Physical exertion;
• Poor physical condition;
• Some medicines;
• Inadequate tolerance for hot workplaces; and
• Insufficient water intake.

To prevent the adverse effects of heat – heat stroke, heat exhaustion, heat cramps, and heat rashes – OSHA recommends that employers consider a variety of administrative and work practice controls. These include:
 

• Acclimating workers to heat by exposing them to work in a hot environment for progressively longer periods;
• Providing cool liquids to employees (not including caffeinated beverages) and encouraging them to drink small amounts frequently (e.g., one cup every 20 minutes);
• Reducing physical demands, such as excessive lifting, climbing, or digging and, if necessary, use relief workers or assign extra workers to minimize overexertion;
• Providing recovery areas such as air-conditioned enclosures;
• Providing intermittent rest breaks;
• Rescheduling hot jobs to the cooler part of the day; and
• Monitoring workers who are at risk of heat stress by checking their heart rate and oral temperature.

OSHA also recommends employers consider certain personal protective equipment (PPE) to address heat hazards, such as loose-fitting reflective clothing, wetted clothing, and water-cooled garments. 

With its new guidance, OSHA is putting employers on notice that they need to take heat-related illness seriously. Employers are encouraged to do so, particularly as we get deeper and deeper into the summer months.

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