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

The Occupational Safety and Health Administration (“OSHA”) released a new interpretation letter on April 5, 2013, clarifying that non-union employees may select a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections of their employer’s worksite.  In reaching this conclusion, OSHA concluded that language in Section 8(e), 29 U.S.C. § 657(e), of the Occupational Safety and Health Act (“OSH Act”) authorizes participation in the walk-around portion of an OSHA inspection by a person affiliated with a union without a collective bargaining agreement or with a community representative so long as the individual has been authorized by the employees to serve as their representative.  

However, OSHA recognized that pursuant to 29 C.F.R. § 1903.8, the OSHA compliance officer may exercise his or her discretion in who can participate in workplace inspections in order to manage the inspection effectively.  While OSHA recognized that its regulations acknowledge that most employee representatives will be employees of the employer, it concluded that there may be times when the presence of an employee representative who is not employed by the employer will be allowed to participate in a workplace inspection.  Specifically, the regulations allow an OSHA compliance officer, for “good cause,” to be accompanied by a third-party who is not an employee, such as “an industrial hygienist or a safety engineer” when, in the judgment of the OSHA compliance officer, such a representative is “reasonably necessary to the conduct of an effective and thorough physical inspection.”  29 C.F.R. § 1903.8(c).  In OSHA’s view, representatives are “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection.  OSHA noted that a non-employee representative may make a positive contribution to an inspection if, for example, he or she has experience and skill in evaluating similar working condition, or when he or she is fluent in the language of non-English speaking workers and would facilitate useful interactions between the compliance officer and the workers.

Citing confusion, OSHA withdrew an earlier 2003 interpretation letter that rejected the right of a non-employee who files an OSHA complaint to participate in the resulting OSHA inspection.  OSHA noted that the 2003 interpretation letter was distinguishable because it did not address the right of workers to designate a representative of their choice.

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In a February 16, 2012 letter to Congresswoman Kristi Noem, OSHA Assistant Secretary David Michaels has provided additional guidance to employers in the grain handling industry regarding the use of sweep augers to remove grain from bins.  Sweep augers are common tools used in grain bins to push grain remaining at the bottom of a bin into a discharge sump opening.  Typically, sweep augers are electrically powered and rotate in a circular direction around the bottom of the bin at an extremely slow speed.  The letter from Assistant Secretary Michaels responds to an inquiry from Congresswoman Noem asking for clarification of earlier Agency pronouncements prohibiting employees from ever entering a grain bin while a bin sweep auger is operating. 

In the February 16 letter, OSHA does not back off of its earlier position.  However, the Agency does state that "if an employer can demonstrate that a worker in a grain storage structure is not exposed to hazards presented by the equipment, the standard does not require the equipment to be deenergized before a worker enters the bin."  This statement may signal that the Agency is moving from a position of a categorical prohibition on employee entry while sweep augers are operating to one which could allow entry so long as certain steps are taken to avoid exposure to any hazard.  How such a policy would work in practice and what steps would be permissible is an open question that OSHA does not address in its response to Congresswoman Noem. 

The importance of this issue to the grain handling industry cannot be overstated.   Sweep augers are ubiquitous in the industry.  All grain handling employers should take note of this recent OSHA letter and make any required changes to their operations.         

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Following its recent interpretation that "therapeutic exercise" constitutes medical treatment for OSHA recordability purposes, OSHA has now stated that an exercise regime recommended by a Certified Athletic Trainer for an employee who exhibits any signs or symptoms of a work-related injury involves medical treatment and is a recordable case.  OSHA made this interpretation in a letter recently posted on its website.

In the same letter, OSHA also provided guidance on whether specific types of exercise constitutes medical treatment.  OSHA states that if a Certified Athletic Trainer "utilizes stretching" to relieve symptoms of a work-related injury or illness, the "stretching" constitutes medical treatment.  OSHA also states that a written home exercise program provided by a Certified Athletic Trainer for signs or symptoms of a work-related injury or illness constitutes medical treatment for recordkeeping purposes.

OSHA's interpretation is particularly important for musculoskeletal disorders (MSDs), as MSDs are often managed, in part, through exercise regimes.  OSHA does note in the letter that exercise given as a purely precautionary measure (i.e., before the onsite of signs or symptoms) would not qualify for recordability.  However, if an employee experiences any signs or symptoms of a work-related injury or illness -- even very early signs or symptoms -- exercise given to manage those signs or symptoms would constitute medical treatment for recordability purposes.

Employers should take note of this new interpretation and adjust their recordkeeping practices accordingly.     

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In a newly released letter of interpretation, OSHA has concluded that "therapeutic exercise" recommended by a health care professional in response to minor work-related "pain" constitutes medical treatment under OSHA's recordkeeping rule.

OSHA was asked whether exercises recommended for a short period of time by an on-site health care professional when an employee is experiencing minor pain would qualify as medical treatment and be recordable, assuming the pain was work-related.  OSHA's response was a definitive "yes."  "Therapeutic exercise" is not included on the list of first aid treatments.  Furthermore, the duration of the exercises makes no difference in an employer's recordability determination:

The fact that physical therapy treatment, including exercise, is normally provided over an extended period of time and is administered by licensed personnel with advanced training was taken into account during the rulemaking process to determine the composition of the first aid list.  However, in implementation of the final requirements, the number of treatments rendered is not a factor in distinguishing between medical treatment and first aid.

OSHA also stated that this situation would not qualify for the exception from recordability for "minor musculoskeletal discomfort" (where the employer assigns a work restriction for the purpose of preventing a more serious condition from developing).  OSHA emphasized that this exception is "very narrow in scope" and that once any type of medical treatment is offered -- including therapeutic exercise -- the case is recordable.  "Work-related minor musculoskeletal discomfort treated with therapeutic exercise constitutes a recordable case."

Employers should take note of this new letter and ensure that their recordkeeping practices are aligned with OSHA's interpretation.

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OSHA has issued a proposed interpretation of the terms "feasible administrative or engineering controls" as they are used in OSHA's general industry and construction occupational noise standards.  Under these standards, employers must first implement feasible administrative or engineering controls before utilizing personal protective equipment (PPE) to reduce employee exposures.  According to OSHA, the proposed interpretation will "clarify that feasible as used in the standard has its ordinary meaning of capable of being done."  This proposed interpretation will have a major impact on all general industry and construction employers, who are encouraged to submit comments to the Agency on the proposed interpretation.  Comments are due by December 20, 2010.

The proposed interpretation would alter existing Agency enforcement policy for determining when an employer may utilize PPE to protect employees from noise exposures, as opposed to relying on engineering and administrative controls.  Existing policy provides that employers will be cited for not implementing certain engineering or administrative controls when hearing protectors are ineffective or the cost of such controls are actually less than the cost of implementing a full hearing conservation program.  OSHA is proposing to eliminate this framework and consider engineering and administrative controls to be feasible so long as they will "not threaten the employer's ability to remain in business or if the threat to viability results from the employer's having failed to keep up with industry safety and health standards."

Aside from the importance of the issue to many stakeholders, by issuing the proposed interpretation in the Federal Register, OSHA is further elevating its status.  It is incumbent upon all stakeholders to comment on this proposed interpretation so that OSHA has the best information available to it when determining how to approach this important issue.   

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In a recently issued letter of interpretation, OSHA has confirmed its policy that employees working in an aerial lift over water may unhook their lanyard from the boom or basket of the lift.  The letter was in response to an employee inquiry regarding a company policy of allowing employees to unhook their lanyards when performing operations over water.  The employee asked whether this practice was allowable under OSHA's construction standards (29 CFR 1926.453(b)(2)(v)).

In response to the questioner, OSHA reiterates that while no such allowance was provided in the actual text of the standard, OSHA's existing cranes and derricks in construction rule -- along with the new cranes and derricks in construction proposal -- permits the practice.  As a result, OSHA concludes that it would be a de minimis violation of 29 CFR 1926.453(b)(2)(v) for employees to unhook their lanyards when performing work over water.  This, of course, makes sense as there is the possibility of a greater hazard to employees in the event of an aerial lift collapse over water if they are tied to the boom or basket.

Employers are encouraged to take note of this interpretation when developing their fall protection programs.   

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Employers may order employees to take seasonal and H1N1 vaccines, the nation’s principal workplace safety and health agency has stated.  OSHA offered this opinion in a letter of interpretation, published recently on the agency’s website.

The letter is addressed to Congresswoman Marcy Kaptur (D-OH), who relayed to OSHA a letter from a constituent asking whether her employer could mandate that she accept a flu shot. According to the constituent, her employer had “threatened the employees with mandatory time off” if they did not accept the flu shots.

OSHA responded, first, by reiterating its guidance that healthcare employers should offer both the seasonal and H1N1 vaccines to employees and that employees should be informed of the vaccines’ benefits. It added, however, that employers may require employees to take the vaccines, even though OSHA has no published standard containing this requirement. OSHA also provided a cautionary note: an employee who refuses to be vaccinated because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11(c) of the OSH Act, which prohibits discrimination against employees who exercise their safety and health rights.

The issue of whether employers can require employees to take flu vaccines has been controversial for both employers and employees. OSHA appears to be stepping directly into this controversy. Even though media attention over the H1N1 virus has subsided for the moment, the issue of mandatory vaccines for employees is one that likely will recur during the next flu outbreak.

While employers should be aware of OSHA’s interpretation, they also must be mindful of other laws and regulations that may be applicable to issues affecting mandatory vaccinations. Collective bargaining agreements also may be relevant. Employers should consider all of this information before adopting any vaccination policies.

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OSHA has declared that it lacks the congressional authority to ban the use of hazardous substances. OSHA made this statement in a letter of interpretation, published on the agency’s website, responding to a question specifically related to OSHA’s ability to ban hexavalent chromium in the workplace. OSHA agrees that “product substitution” is the best solution to eliminating the hazards from hexavalent chromium. However, the agency rejects the notion that it can ban its use or the use of any hazardous substance. According to OSHA, the authority to ban the use of hazardous materials has been delegated to the U.S. Environmental Protection Agency (EPA).

OSHA’s authority to mandate employers’ adherence to safe practices is provided by the Occupational Safety and Health Act of 1970 (OSH Act). While the OSH Act does not specifically allow OSHA to ban the use of hazardous substances, the agency has always taken a broad view of its regulatory authority. Thus, if banning the use of a hazardous substance were “reasonably necessary and appropriate” to provide a safe work environment, it could be argued that OSHA would have the authority to institute the workplace ban. However, the agency seems to have foreclosed that argument with its latest statement.

OSHA’s position is not simply of theoretical interest. It could be very important in upcoming OSHA regulatory actions. For example, the agency is preparing a proposal to regulate silica exposure comprehensively in the workplace. Many stakeholders have called for OSHA to ban the use of silica in abrasive blasting operations. This latest declaration from the agency would appear to take this possible regulatory approach off the table. It also could be important in OSHA’s diacetyl rulemaking, where product substitution is a significant issue.

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In a new letter of interpretation, OSHA has confirmed that injuries to employees sustained at off-site team-building events are recordable on OSHA logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid). Employers are encouraged to review their recordkeeping practices to ensure that they are complying with this interpretation of OSHA’s recordkeeping rule.

OSHA was asked whether an injury incurred while an employee was go-cart racing at an off-site team-building activity was “work-related” under OSHA’s rule. In the scenario presented to OSHA, employees were not required to participate in the go-cart racing or other team building events. However, they were required to attend an off-site meeting and luncheon. In OSHA’s view, the employee was at the go-cart facility as a condition of employment and thus was “in the work environment.” Any injury or illness that arises is therefore presumed to be work-related in the view of the Agency.

Employers often hold team-building events at locations outside the workplace. If injuries occur during these events, employers must record them on their OSHA logs, assuming the injuries meet other recordability criteria.

With OSHA developing a National Emphasis Program on recordkeeping, now is the time for employers to review their recordkeeping procedures and logs to ensure they are fully compliant.
 

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In a recent letter of interpretation addressing a common issue at worksites around the country, OSHA confirmed that injuries to employees sustained at the worksite as a result of “horseplay” are recordable on OSHA Logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid).

The interpretation stems from an incident described as “horseplay gone badly.” At the end of a work day, two supervisors got into a physical confrontation while changing to go home. One supervisor pulled a knife and stuck the other in the arm, resulting in several sutures.

OSHA stated that the injury was recordable. First, because the injury resulted from an event occurring in the work environment, it was presumed to be work-related and none of the exceptions to this “geographic presumption” applied. The exceptions include, among other things, injuries such as those resulting from an employee eating, drinking, or preparing food for personal consumption, those involving signs or symptoms that surface at work but result solely from a non-work-related event, and those caused by a motor vehicle accident occurring on a company parking lot while the employee is commuting to or from work. Second, because the injury required medical treatment beyond first aid, OSHA concluded that it satisfied the other recordability criteria related to severity.

OSHA dismissed as essentially irrelevant the issue of whether the injury resulted from activities that were “not directly productive” to the employer’s work. OSHA also reiterated that there is no general exception under the recordkeeping rule for violence that occurs at the worksite.

Situations such as this are all too common in the workplace. Aside from taking steps to address violence in the workplace generally, employers must ensure that when an incident occurs and injury results, it is properly recorded under OSHA’s rules, if warranted.
 

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