The Occupational Safety and Health Administration plans to inspect at least 1,260 establishments under its site-specific targeting (“SST”) program for 2013. Details are here.
OSHA has announced a National Emphasis Program (NEP) to encourage compliance with safety and health standards at nursing and residential care facilities through programmed inspections. The NEP, which directs OSHA compliance officers to focus inspections on ergonomic stressors associated with lifting patients; slips, trips, and falls; bloodborne pathogens; exposure to tuberculosis; and workplace violence, took effect on April 5, 2012 and is scheduled to remain in place for three years. The attached Special Report summarizes the key aspects of the NEP and provides guidance to help ensure compliance with the OSHA standards identified as target areas.
OSHA has embarked on a new National Emphasis Program (NEP) targeting hexavalent chromium in the workplace, along with other toxic substances found in conjunction with hexavalent chromium. OSHA's intent with the NEP is to "target workplaces with occupational exposures to hexavalent chromium" and certain other toxic substances (e.g., antimony, arsenic, cadmium, lead, iron oxide) to encourage compliance with applicable standards. In 2006, OSHA issued updated standards regulating exposures to hexavalent chromium compounds in general industry, construction, and maritime. The NEP was effective February 23, 2010.
Under the NEP, inspections will focus on industries where hexavalent chromium overexposures are known to occur, including: electroplating; aircraft manufacturing; ship building and repair; inorganic dye and pigment manufacturing; iron and steel mills; ferrous foundries; chrome colors and other inorganic pigments. Establishments with fewer than 10 workers will be included in the NEP.
OSHA's Directorate of Evaluation and Analysis will prepare for each Area Office a master inspection list for the office to use in planning inspections. Area Offices are given flexibility to schedule inspections within a specified inspection cycle, in order to make efficient use of resources. The inspections will be conducted by an Industrial Hygiene Compliance Officer, trained in the hazards of hexavalent chromium.
At the opening conference, the compliance officer will verify that hexavalent chromium or other identified toxic substances are present in the workplace and if they are, the compliance officer will proceed with the inspection. The compliance officer is instructed to consider and evaluate worker exposures and compliance in activities including, but not limited to: regular operations; setup and preparation for regular operations; making adjustments during operations; cleaning of the process area; scheduled and unscheduled maintenance; implementation of engineering controls; use of PPE; medical surveillance programs; and worker training and education. If there are any safety hazards noted, these may be referred for a safety inspection.
This NEP is another in a series of enforcement initiaitives that OSHA is undertaking. Employers with operations with hexavalent chromium or the other toxic substances included in the NEP must review the NEP and prepare for an inspection.
In 2009, OSHA emerged from the regulatory and enforcement shell that had shrouded it during the eight years of the Bush Administration. Once confirmed, Secretary of Labor Hilda Solis announced that a “new Sheriff” was in town, who would refocus the Department of Labor – including OSHA – on tough enforcement and aggressive rulemaking. In both areas, OSHA delivered on Secretary Solis’s promise.
OSHA Increases Enforcement
Many critics of OSHA during the Bush Administration focused on the seeming “emphasis” on cooperative programs and compliance assistance, at the expense of strong enforcement. In response, the Department of Labor announced in 2009 the hiring of hundreds of additional compliance officers (CSHOs) to refocus the Agency on what many believe is its core mission – enforcing occupational safety and health standards. It also initiated or revamped several new National Emphasis Programs (NEPs) to further focus CSHOs on certain safety and health issues and hazards:
Chemical Facilities National Emphasis Program. OSHA initiated a new NEP to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.” In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation. Paper programs are not enough and OSHA will make sure that employers are fully implementing their PSM programs.
Recordkeeping National Emphasis Program. In the fall of 2009, OSHA launched its long-awaited Recordkeeping NEP. The NEP subjects employers in certain industries to comprehensive injury and illness records reviews. The purpose of the NEP is to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. OSHA cites several recent studies in the NEP asserting under-recording by employers on OSHA 300 logs. The NEP is designed to “identify and correct under-recorded and incorrectly recorded cases.” Employers subjected to an NEP inspection will face what are likely to be the most comprehensive inspections in the history of the Agency, with detailed records reviews, interviews of numerous employees, and an analysis of employer safety incentive programs and the effect of these programs on the reporting of injuries and illnesses.
Facilities that Manufacture Food Flavorings Containing Diacetyl National Emphasis Program. After focusing for years on the hazards of occupational exposure to diacetyl in microwave popcorn production, OSHA finally shifted its focus with respect to diacetyl to employers who manufacture food flavorings containing diacetyl. OSHA cites a Centers for Disease Control (CDC) study finding seven cases of bronchiolitis obliterans – a lung disease associated with exposure to diacetyl – in employees working in facilities where flavorings are manufactured. As part of the NEP, OSHA identifies eighty three facilities for inspection and provides detailed guidance for compliance officers to determine the extent to which these facilities are in overall compliance with their obligations.
Perhaps the most eagerly anticipated – and discussed – enforcement initiative was not an NEP at all, but was related to OSHA enforcement procedures for high to very high occupational exposure to the 2009 H1N1 virus. H1N1 captivated the world this past year, and OSHA spent significant resources addressing the occupational safety and health side of the issue. In the spring and summer of 2009, OSHA responded to the H1N1 outbreak by reissuing and repackaging guidance documents on pandemic influenza that had been previously developed. In November, however, OSHA went further and announced inspection procedures for certain high-hazard H1N1 workplaces, including hospitals, emergency medical centers, doctors’ and dental offices and clinics.
A More Active Regulatory Agenda
In 2009, OSHA also set a course for more activity in the rulemaking arena. As with enforcement, many stakeholders were critical of the Bush Administration’s perceived lack of investment in OSHA’s regulatory agenda. The two most significant regulatory accomplishments during the Bush Administration were the final Hexavalent Chromium rule and the final Employer Payment for PPE rule. Many stakeholders, however, argued that even these accomplishments were essentially forced on the Agency by the federal courts. Whether this is true or not, the first year of the Obama Administration saw the announcement of several new regulatory initiatives and what is even more stunning is that these initiatives were announced without a permanent political head of the Agency.
In 2009, OSHA announced new rulemakings for combustible dust hazards and airborne infectious diseases. OSHA also announced that it would revisit in a new rulemaking the definition of work-related musculoskeletal disorders (WMSDs) and how WMSDs should be recorded on OSHA 300 logs. This year OSHA also published its proposed rule to update its hazard communication standard. The hazard communication proposal is one of the most significant OSHA rulemakings in over a decade. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.
Finally, in 2009 OSHA made significant progress on its Cranes and Derricks in Construction proposed rule. OSHA’s proposal was over five years in the making. It was developed by the Agency through negotiated rulemaking, whereby representatives of employers and organized labor work together with OSHA to develop a draft rule. Consensus was reached by the negotiated rulemaking committee in 2004. OSHA held public hearings on the proposed rule in 2009 and Agency staff have been busy reviewing comments received with the goal of issuing a final rule in 2010.
All of this in just over 11 months. And yet, this is likely just the beginning for OSHA as 2010 is expected to bring greater enforcement and regulation.
(More to come on what to expect in 2010 in the next blog post.)
OSHA's Recordkeeping National Emphasis Program (NEP) has been in effect for over a month and employers should be taking steps now to review their records and prepare for an NEP inspection.
Click here for an article that can assist in the preparation process. "Are You Prepared for OSHA's Recordkeeping National Emphasis Program?," which just appeared in Workforce Management, describes the NEP and some recordkeeping best practices. Implementation of these best practices can help ensure that employers are fully compliant with their OSHA recordkeeping obligations.
OSHA has launched its long-awaited Recordkeeping National Emphasis Program (NEP). Effective September 30, the NEP will subject employers in certain industries to comprehensive injury and illness records reviews. Employers in the targeted industries should take time now to review their recordkeeping logs and practices to prepare for an NEP inspection.
Here is a special report on the NEP, including a description of its scope, the conduct of inspections, and the treatment of musculoskeletal disorders under the program.
OSHA has released its much anticipated recordkeeping National Emphasis Program (NEP). It became effective September 30. Click here to see the NEP.
We will be reviewing the document carefully and pass along to you the key aspects of the program.
In a speech recently before the Small Business Administration’s safety and health forum in Washington, DC, Richard E. Fairfax, OSHA’s Director of Enforcement and Construction Programs, provided an update on the agency’s key enforcement initiatives. Of particular note, Mr. Fairfax stated:
- OSHA will be issuing another update to its Field Operations Manual (FOM) in November 2009. The FOM guides OSHA’s compliance officers in the conduct of their inspections.
- OSHA’s Enhanced Enforcement Program (EEP) is being revised to focus on fatalities, serious hazards and hazards identified in OSHA’s National Emphasis Programs, and to mandate follow-up inspections.
- The following NEPs are now in the works: food flavorings; primary metals; hexavalent chromium; and recordkeeping.
OSHA also has issued two important new enforcement documents. The Site Specific Targeting Program (SST) for 2009, “is OSHA’s main programmed inspection plan for non-construction workplaces that have 40 or more employees.” To compile the SST, OSHA surveyed 80,000 large employers in historically high-rate industries, requiring them to report their injury and illness rates. Employers in manufacturing who reported a particularly high “Days Away, Restricted, or Transferred (DART) Rate” (over 8.0) or “Days Away from Work Injury and Illness (DAFWII) Case Rate” (over 6.0) should expect an SST inspection within the next year. Non-manufacturing employers who reported a DART Rate over 15.0 or DAFWII Rate over 13.0 also should expect an inspection under the SST. Nursing and personal care facilities are treated separately under the SST and will be subject to an inspection if they reported a DART Rate over 17.0 or a DAFWII Rate over 14.0.
OSHA also reissued its petroleum refinery NEP. This continues OSHA’s focus on enforcing its process safety management (PSM) standard in refineries. Employers in NAICS code 324110 should review their PSM programs in anticipation of an OSHA inspection of their facilities.
OSHA has announced a new National Emphasis Program (NEP) to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. Chemical facilities with PSM-covered processes should review their programs now to ensure full compliance with OSHA standards.
The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.” Chemical facilities in the Northeast (OSHA’s Region 1), the Plains States (OSHA’s Region VII), and the Northwest and Alaska (OSHA’s Region X) will be subject to programmed inspections under the NEP. The NEP will apply to unprogrammed inspections for PSM-covered processes OSHA-wide.
In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation:
Based on past inspection history at refineries and large chemical plants, OSHA has found that employers may have an extensive written process safety management program, but insufficient program implementation. Therefore, CSHOs should verify the implementation of PSM elements to ensure that the employer’s actual program is consistent with their written program.
Compliance officers also are instructed at the start of inspections to request numerous documents from employers, some of which are not required to be kept under the standard (e.g., a list of all PSM-covered process/units in the complex, a summary description of the facility’s PSM program, safe upper and lower operating limits for certain covered units). According to OSHA, however, they represent “documents typically compiled by employers with PSM-covered processes at their facilities.” Furthermore, OSHA will examine under the NEP all contractors – including construction contractors – working on or adjacent to PSM-covered units being inspected.
This is just the first of several key NEPs OSHA will be releasing. OSHA’s Recordkeeping NEP should be released within days, and other NEPs on Food Flavorings, Oil and Gas Well Drilling, Primary Metals, and Hexavalent Chromium are in the works.
We will continue to keep you apprised of all of OSHA’s enforcement initiatives.
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.
Signaling its renewed focus on enforcement, OSHA has announced it is developing six new National Emphasis Programs (NEPs). NEPs focus OSHA’s resources on industries, hazards, and occupational injuries and illnesses that need additional targeted enforcement, in the Agency’s view.
OSHA’s Director of Enforcement Programs revealed the following industry-specific NEPs are in development:
- Chemical plants – process safety management;
- Primary metals;
- Flavorings and diacetyl; and
- Oil and gas well drilling.
Employers in these industries should expect additional inspections and take steps now to ensure their safety and health practices are fully compliant with OSHA requirements.
Even more employers, however, can anticipate increased scrutiny on account of OSHA’s recordkeeping initiative. As a result of questions raised by Congress and labor organizations that injuries and illnesses are underreported, OSHA announced it is developing a recordkeeping NEP. All employers who are required to keep OSHA injury and illness logs should review them now for accuracy, completeness, and appropriate certification.
Finally, OSHA is developing an NEP dealing with occupational asthma, a growing area of concern for OSHA and the National Institute for Occupational Safety and Health.
In a recent speech, newly confirmed Secretary of Labor Solis committed OSHA to increased enforcement. These NEPs will drive much of that enforcement in coming months.