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

OSHA recently issued its long-awaited regulatory agenda.  The agenda is designed to provide stakeholders with notice of what major regulatory initiatives the agency is planning and the projected timetables for those initiatives.

OSHA’s agenda is the first issued in several months by the agency and provides a glimpse into the regulatory priorities – in President Obama’s second term.  The signature initiative of OSHA over the last four years has been its Injury and Illness Prevention Program (IIPP) rule.  That rule has been under development for several years, but has yet to be released in any form or fashion to the public.  The recently published regulatory agenda states that OSHA will initiate the SBREFA process in January of 2013 for the rule, with a Notice of Proposed Rulemaking to follow in December, 2013.  Another major rulemaking – OSHA’s effort to propose a comprehensive standard regulating silica – is slated to be published in May, 2013.

Three other significant regulatory actions under development are listed as follows:

• Combustible Dust – Initiate SBREFA in October, 2013.
• Electric Power Transmission and Distribution – Issue final rule in March, 2013.
• Update Recordkeeping Rule regarding Reporting of Amputations/In-patient Hospitalizations – Issue final rule in May, 2013.

All stakeholders should continue to monitor progress on these and other OSHA initiatives as we continue to see a very active OSHA in the coming months and years.
 

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As Hurricane Sandy bears down on the East Coast, we wanted to highlight some key sources of information for hurricane preparedness and response:

• OSHA Guidance
• CDC Guidance
• FEMA Guidance

Employers affected by the storm should review their emergency preparedness plans and these sources of information to ensure their employees are fully protected. 

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OSHA has recently announced two new “initiatives” aimed at improving compliance in traditional "summer-time" areas of concern for the agency:  heat illness and falls.

Heat Illness

Since 2009, OSHA has placed a priority on the prevention of heat illness, especially in the hot summer months.  The most recent campaign is intended to raise the awareness among workers and employers about the hazards of working outdoors in hot weather by creating a webpage devoted exclusively to work-related heat illness. While OSHA does not have a standard dealing directly with heat stress, OSHA could potentially utilize the General Duty Clause of the Occupational Safety and Health Act of 1970 to cite employers for failing to take adequate steps to protect employees from heat illness. Employers should review their policies and practices to ensure that they have plans in place to deal with heat stress at their worksites.

Preventing Falls in Construction

Similarly, OSHA recently launched a webpage devoted to preventing falls in the construction industry.  OSHA provides educational and other materials to employers on ways to prevent falls in construction, train employees, and plan jobs safely. Fall hazards are also a major focus of enforcement in the construction industry. It is incumbent upon construction employers to ensure full compliance with OSHA’s standards related to fall protection.

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In a recent memorandum to Regional Administrators and Whistleblower Program Managers, Richard Fairfax, the Deputy Assistant Secretary for OSHA, has provided "guidance to both field compliance officers and whistleblower investigative staff on several employer practices that can discourage employee reports of injuries and violate section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act), or other whistleblower statutes."  Section 11(c) prohibits an employer from discriminating against an employee for exercising any right afforded by the Act.

The memorandum states definitively that "reporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination under section 11(c)."  It also lists the "most common" potentially discriminatory policies:

• Taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury.  "[A]n employer's policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury."
• Taking disciplinary action against employees who report an injury or illness and the stated reason is that the employees have violated an employer rule about the time or manner for reporting injuries and illnesses.  "OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries.  To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee's right and ability to report."
• Taking disciplinary action against employees who are injured on the job because they violated a safety rule, when the rule violation is simply a pretext for discimination.
• Establishing incentive programs that may discourage reporting of injuries.  "For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time."

The issue of programs and policies that may impact injury and illness reporting has been a topic of debate since OSHA issued its Recordkeeping National Emphasis Program (NEP), which instructed compliance officers to investigate certain safety incentive programs as part of the NEP inspections.  Employers should take note of this new guidance from OSHA and make any needed adjustments to their policies.

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As the winter storm season approaches, the Occupational Safety and Health Administration has focused on protecting workers from hazards during winter storm response and recovery operations. OSHA’s new webpage, entitled “Winter Storms,” provides employers with information on preparing for winter storms and identifying and controlling hazards associated with winter storm conditions.

A number of hazards associated with winter storms are addressed:  being struck by falling objects such as icicles, tree limbs, and utility poles; driving accidents due to slippery roadways; carbon monoxide poisoning; dehydration, hypothermia and frostbite; exhaustion from strenuous activity; back injuries or heart attack while removing snow; slips and falls due to slippery walkways; electrocution from downed power lines and downed objects in contact with power lines; burns from fires caused by energized line contact or equipment failure; falls from snow removal on roofs or while working in aerial lifts or on ladders; roof collapse under weight of snow (or melting snow if drains are clogged); and lacerations or amputations from unguarded or improperly operated chain saws and power tools, and improperly attempting to clear jams in snow blowers.

OSHA recommends steps for avoiding or controlling these identified hazards. It also provides links to the Federal Emergency Management Agency, the American Red Cross, the National Weather Service, the National Oceanic and Atmospheric Administration, the Centers for Disease Control and Prevention, and the National Safety Council for additional information.

Employers should review the information provided by OSHA to ensure that they are aware of potential hazards that may affect their employees.

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Click here to access the Summer 2011 edition of the Workplace Safety and Health Reporter.  The Reporter highlights recent safety and health developments across the country.  We hope you find the newsletter informative.

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Click here to access Jackson Lewis's new newsletter:  the Workplace Safety and Health Reporter.  The Reporter highlights recent safety and health developments across the country and will be published quarterly.  We hope you find the newsletter informative.

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OSHA is launching a nationwide outreach campaign "to raise awareness among workers and employers about the hazards of working outdoors in hot weather." In furtherance of this campaign, OSHA has developed a webpage devoted exclusively to work-related heat illness.

The website provides links to educational resources to inform employers and employees about heat illness and steps to protect workers from the heat. There are also training tools and materials for "vulnerable workers with limited reading skills or who do not speak English as a first language." OSHA also is partnering with the National Oceanic and Atmospheric Administration on weather service alerts, which will provide worker safety precautions when extreme heat alerts are issued.

It is common for OSHA to reach out to employers and employees at this time of year to alert them to the potential dangers of work in extreme heat conditions. While OSHA does not have a standard dealing directly with heat stress, OSHA could potentially utilize the General Duty Clause of the OSH Act to cite employers for failing to take steps to protect employees from heat-related illness. Employers in warm climates, in particular, should review their policies and practices to ensure that they have plans in place to deal with heat stress at their worksites.

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OSHA has just released a hazard alert to hair salon owners warning of potential formaldehyde exposure from working with some hair smoothing and straightening products. In a press release announcing the hazard alert, OSHA states:

Federal OSHA has found formaldehyde in the air when stylists used hair smoothing products, some of which do not have formaldehyde listed on their labels or in material safety data sheets as required by law. During one investigation, the agency's air tests showed formaldehyde at levels greater than OSHA's limits for a salon, even though the product tested was labeled as formaldehyde-free.

OSHA has a health standard that regulates formaldehyde exposure in the workplace. OSHA recommends that hair salons first use products that do not contain formaldehyde. But, OSHA states that “if a salon owner decides to continue using a formaldehyde-containing hair smoothing product, then he or she must follow OSHA's formaldehyde standard,” including requirements for air monitoring, installing ventilation, and providing PPE, depending upon the extent of formaldehyde exposure.

This is not the first alert issued by OSHA to a specific industry. In recent months, OSHA has publicly put grain handling and retail shopping employers on notice of potential safety and health hazards in those industries. Targeting industries through hazard alert letters, letters of interpretation, Federal Register notices, or other means, may make it easier for OSHA to enforce standards against employers in the industries targeted, as they help to establish employer notice of hazards and feasible means of abatement. Employers in targeted industries need to be particularly aware of safety and health hazards and take steps to ensure they are fully compliant with OSHA rules. In the case of hair salons, OSHA gives an even clearer warning, stating that it currently has a number of ongoing investigations at salons and some citations “have been issued.”

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OSHA has just released a Small Entity Compliance Guide for its Cranes and Derricks in Construction final rule.  The intent of the Guide is to assist employers -- and particularly small employers -- in understanding OSHA's new crane safety requirements.  All employers covered by the rule should review the document to further ensure compliance.

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With the holiday shopping season fast approaching, OSHA is reminding retail employers of steps to take to prevent employee injuries due to large crowds during Black Friday and other sales events.  OSHA has reissued its "Crowd Management Safety Tips for Retailers," which provides guidance to employers to help prevent injuries during the coming months.  OSHA recommends that employers establish a system for crowd management that includes the following main elements:

• Planning.  Create a detailed staffing plan and train employees in the plan and its implementation.  Emergency response should be considered and appropriate individuals within the organization designated for any emergency response effort.
• Pre-Event Setup.  Set up barricades or rope lines to control crowds and have employees keep in communication by radios or other means.  Designate employees to communicate with shoppers and others and to explain safety precuations taken.  Consider implementing other crowd management techniques, such as numbered tickets or wristbands.
• During the Sales Event.  Ensure that employees know when the doors are about to open.  When the maximum occupancy is reached, prohibit additional customers from entering.  Place uniformed guards at entrances, if necessary.
• Emergency Situations.  Do not block or lock any exit doors and employees should be told to listen to first responders.  First aid kits and AEDs should be available.

There is no OSHA standard regulating crowd management.  But employers are encouraged to take note of OSHA's guidance and ensure their safety and health systems consider potential hazards during the holiday shopping season.     

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Jackson Lewis and SmartPros Ltd. are pleased to announce the availability of two OSHA recordkeeping courses.  The first is Course 2215, OSHA’s Record-Keeping NEP:  What It Is and What You Need to Do to Prepare, which explains OSHA’s Recordkeeping NEP in detail.  The second is Course 2210, The OSHA Record-Keeping "Great Eight," which goes through eight key principles for OSHA recordkeeping compliance.

In addition, click here to view a recent interview on occupational safety and health issues prepared and produced by the Financial Management Network (FMN).  The interview covers H1N1, hazard communication, safety and health management systems, OSHA's Recordkeeping NEP, and other hot topics.

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With Labor Day behind us and schools back in session, concerns about the H1N1 influenza virus and seasonal flu are resurfacing.  The Centers for Disease Control recently released Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Flu Season, including a helpful “toolkit” to aid in such planning.  OSHA also has published important guidance that employers should review.

Employers are finding that the workplace issues arising under H1N1 are numerous, varied, and complex.  Many have questions about the legal and practical impact H1N1 will have on their businesses.  More and more are seeking assistance in developing written H1N1 policies and creating business continuity plans during a time when they could experience substantial absenteeism.  To help employers deal with these issues, Jackson Lewis has developed the following free resources:
 

• A webinar recorded in May 2009 providing an overview of the legal issues that must be considered in preparing for an H1N1 pandemic. In this webinar, we consider the potential OSHA, ADA, FMLA, FLSA, HIPAA and state law issues that may arise as employers respond to H1N1.
• A sample handbook policy discussing some of the critical points employers may want to consider communicating to employees.
• An article discussing the CDC’s recent Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Flu Season, including a link to the Guidance and the “toolkit” prepared by the CDC.

We will continue to keep you apprised of developments with respect to H1N1 and seasonal flu and pass along any additional information to aid in your preparedness plans.

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The Centers for Disease Control and Prevention, anticipating a spread of the H1N1 flu, has released new guidelines to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees, and operations.

The guidelines urge employers to work with employees to develop and implement plans that can reduce the spread of flu.  They push for the preparation of plans that address such points as encouraging employees with flu-like symptoms to stay home, operating with reduced staffing and, where feasible, having employees who are at higher risk of serious medical complications from infection work from home.

Employers also might cancel non-essential face-to-face meetings and travel, and space employees farther apart in the workplace, the guidelines say.

The guidelines provide a list of “Actions Employers Should Take Now,” including:

• Review or establish a flexible influenza pandemic plan and involve employees in developing and reviewing the plan;
• Conduct a focused discussion or exercise using the plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected before flu season;
• Have an understanding of normal seasonal absenteeism rates and know how to monitor personnel for any unusual increases in absenteeism through the fall and winter;
• Allow sick workers to stay home without fear of losing their jobs;
• Develop other flexible leave policies to allow workers to stay home to care for sick family members or for children if schools dismiss students or child care programs close; and
• Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.

We will keep you apprised of other developments as the fall flu season approaches.

A special thanks to Mei Fung So of Jackson Lewis who prepared this blog 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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In a harbinger of things to come, OSHA recently released comprehensive guidance on controlling silica exposures in construction.  The document is over 70 pages and details control methods for a variety of operations in construction, including:

• Stationary masonry saws
• Handheld masonry saws
• Hand-operated grinders
• Tuckpointing/mortar removal
• Jackhammers
• Rotary hammers and similar tools
• Vehicle-mounted rock drilling rigs
• Drywall finishing

The two control measures most commonly recommended throughout the document are:

1. Wet methods, whereby water is sprayed at the source of the silica dust generation thus reducing the dust that can become airborne, and
2. Vacuum dust systems, whereby grinders or other tools are equipped with a vacuum collection device that captures the silica released at the point of operation.

The document also provides guidance to employers on the current silica permissible exposure limit (PEL) for construction. The current PEL is expressed through millions of particles per cubic foot (mppcf). This “particle count” method is now obsolete and it has been giving the agency enforcement headaches for years. In the guidance document, the agency evaluates the effectiveness of controls not against the silica construction PEL, but against a benchmark 8-hour time-weighted average (TWA) exposure of .1 mg/m3 of respirable silica dust. The agency states that this benchmark level is actually lower than the current construction PEL and thus, for employers following the benchmark level, they will be in compliance with the construction PEL.

The guidance document is also important as an indicator of where OSHA is heading in its upcoming silica rulemaking. The data on which the recommendations in the guidance document are based will be the same as that used by the agency to justify the technological and economic feasibility of a final silica standard.

OSHA’s silica rulemaking is one of the Obama administration’s highest priorities. The next step in the rulemaking process is for OSHA to conduct a peer review of the proposed rule’s risk assessment and health effects. This early look at the agency’s risk assessment for silica will be valuable in seeing the agency’s plans for the PEL. Will it be lowered? And if so, by how much?

OSHA is focused on silica and the guidance document is just the first of more to come.
 

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