Recently, the California Court of Appeal reviewed an appeal regarding citations issued against a sheet metal company, Nolte Sheet Metal in Nolte Sheet Metal, Inc. v. Occupational Safety and Health Appeals Board. Read my article on Jackson Lewis’ California Workplace Law Blog by clicking here.
Review Commission Gains Quorum After Senate Confirmations
Since April of 2019, the Occupational Safety and Health Review Commission (“Commission”) has been a panel of one. After Chairwoman Heather MacDougall resigned from the Commission on March 31, 2019 and Commission Cynthia Attwood’s term ended in April of 2019, the Commission was left with one member, Commissioner James Sullivan, Jr. In July 2019, Mr. Sullivan was elevated to Chairman of the Commission and has sat in that position without a quorum since then. But that will soon change as the Senate has confirmed two appointees, both familiar faces to the Commission.
On January 9th, 2020, the Senate confirmed both Cynthia Attwood and Amanda Wood Laihow by voice vote. Attwood has previously served two terms on the Commission, both as a commissioner and as Chairwoman, with her first term beginning in February 2010 and her last term ending on April 27, 2019. Ms. Attwood’s third term would expire on April 27, 2025. As for Ms. Wood Laihow, she is also familiar to the Commission as she currently serves as Chairman Sullivan’s chief counsel. Ms. Wood Laihow’s term is set to expire on April 27, 2023.
Because the Commission has lacked a quorum, Chairman Sullivan has been unable to issue decisions on pending appeals. However, he has been able to continue to designate cases for review. According to the Commission’s website, there are currently 23 cases pending Commission review. Once Attwood and Wood Laihow are officially sworn in, the Commission can begin reviewing those appeals and start issuing decisions again.
OSHA Penalty Increase Effective Tomorrow
The Inflation Adjustment Act requires the Department of Labor to annually adjust its civil monetary penalties to adjust for inflation no later than January 15 of each year. Today, the Federal Register published the Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2020. This final rule increases civil penalties the Department of Labor assesses including those issued by OSHA based on workplace inspections and potential violations of safety and health standards. The rule is effective today and the increased penalty rates will apply to any penalties assessed after the effective date of the rule. So beginning tomorrow, OSHA civil penalties will increase.
Employers who have open and ongoing OSHA inspections can expect that any citations issued by OSHA after today will reflect the increased penalties.
The new 2020 maximum OSHA penalties are as follows:
- Other-than-Serious: $13,494 (increased from $13,260)
- Serious: $13,494 (increased from $13,260)
- Repeat : $134,937 (increased from $132,589)
- Willful: $134,937 (increased from $132,589)
California Employers May Soon Have to Share Safety Plans
Since 1991, California employers with 10 employees or more have been required to develop written workplace injury and illness prevention plans (“IIPP”). But there is no requirement that employers share those plans with employees. That could be changing soon.
In an upcoming meeting, California’s Occupational Safety and Health Standards Board (“Standards Board”) will be considering a proposed standard that would amend the current IIPP standard to include a provision allowing for employee access. If adopted, the new standard would require employers to “provide access to the Program” by either giving a printed or electronic copy to the employee or their designated representative within five business days of a request or by allowing “unobstructed access through a company server or website, which allows an employee to review, print, and email the current version of the Program.”
Comments to the proposed standard showed that the five-day response window concerned both employers and union representatives; of course, for different reasons. In response to the proposed five-day deadline, the United Food and Commercial Workers Western States Council commented that employees should be provided access within 48 hours. Its rationale being that the employer’s IIPP “should be readily available and may be needed to address urgent work health and safety concerns.” The Standards Board rejected that rationale stating that “allowing an employer five business days to respond to a request for an IIPP should not be equated to a five-day lapse in addressing an ‘urgent work health and safety concern.’” On the other hand, employers argued that the five-day period was too short, with comments suggesting that the period should be lengthened to anywhere from 10 to 30 days. Again, the Standards Board rejected these comments finding that five business days was a sufficient to timeframe for employers respond.
If approved by the Standards Board, the proposed standard will continue through the rulemaking process and will likely be finalized in the coming months. In the meantime, employers in California should begin to consider how they will comply with the proposed standard. While the standard places a burden on employers, it is also intended to provide them with some flexibility. The proposed standard states that “[t]he employer shall communicate the right and procedure to access the Program to all employees.” In responses to employer comments, the Standards Board stated that this subsection is intended to provide “employers with flexibility in determining the best method for providing [] access.” So, employers should begin to consider how they will comply with the standard, including determining a process for requests to be made and also deciding whether the programs will be provided in hard copy or if they will provide requesting employees with access to the IIPP via a company server or website.
Cal/OSHA Shows Concern After Increase in Work-Related Fatalities
On December 18, 2019, Cal/OSHA issued a news release outlining California’s fatal workplace injury data for 2018. Each year California, in conjunction with the U.S. Bureau of Labor Statistics, conducts a Census of Fatal Occupational Injuries (“CFOI”). Cal/OSHA uses the data from the CFOI to help inform its enforcement and education priorities.
In 2018, California saw an increase in the total amount of work-related fatalities as the number of such deaths jumped from 376 in 2017 to 422 in 2018. In response to the increase, Cal/OSHA Chief Douglas Parker stated that
An increase in workplace fatalities is a serious concern for Cal/OSHA. We are analyzing the data to bolster and direct our enforcement and education efforts.
But, no concrete plans to increase enforcement or education efforts have been announced by the agency.
Of particular concern to Cal/OSHA was the percentage of work-related fatalities that involved monolingual non-English speaking workers. Specifically, the latest data showed that approximately 43% of workplace fatalities in California involved Latino workers. This is an area of concern for Cal/OSHA as their data shows that Latinos suffer fatal workplace injuries at a disproportionate rate.
Additionally, the data collected showed that a majority of workplace fatalities were the result of either transportation incidents (36.7%) or violence in the workplace (21.8%). Consequently, the occupation with the largest number of work fatalities was drivers/truck drivers with 69, followed by construction laborers with 26 work-related fatalities.
While California saw an increase in occupational fatalities in 2018, it should be noted that its Occupational Fatality Rate remained relatively unchanged at 2.3 per 100,000 workers. This was a slight increase from the 2.2 rate that California maintained from 2015 through 2017. California’s fatality rate is also well-below the national average, which was 3.5 per 100,000 workers in 2018. But, Cal/OSHA sees any increase in workplace fatalities as a reason for concern. Because of this, employers in the state, especially those in high-hazard industries, can expect to see an increase in enforcement activity from the agency.
OSHA Can’t Stop the Music, But Maybe Employers Should
On September 6, 2019, OSHA issued a letter of interpretation in response to an employers question regarding the use of headphones to listen to music on construction sites. The employer stated that some headphones are advertised as “OSHA approved” and asked whether OSHA had any specific regulation that prohibits the use of headphones to listen to music on a construction site. While OSHA does not have a regulation prohibiting the use of headphones, the letter outlines several hazards and issues that employers should consider.
First, the letter advised that OSHA has a construction standard that sets noise exposure limits and that, if those limits are exceeded, the employee must provide hearing protection to reduce noise levels below the exposure limits. OSHA clarified that portable music players are not a substitute for proper hearing protection.
Next, the letter states that while headphones may be allowed at the employer’s discretion, employers must consider whether the use “creates or augments other hazards apart from noise.” OSHA was particularly concerned with the possibility that listening to music through headphones may expose employees working on construction sites to struck-by hazards. OSHA stated that employers must “ensure that employees are not exposed to struck-by hazards while performing their work. Listening to music may produce a safety hazard by masking environmental sounds that need to be heard, especially on active construction sites where attention to moving equipment, heavy machinery, vehicle traffic, and safety warning signals may be compromised.”
Finally, OSHA addressed the issue of headphones being advertised as “OSHA approved” by clarifying that “OSHA does not register, certify, approve, or otherwise endorse commercial or private sector entities, products, or services.”
The key takeaway from the letter is that employers must address employee use of headphones to listen to music on the worksite, even if there is not specific OSHA standard prohibiting it. If the use of headphones would expose employees to potential hazards, such as the struck-by hazards described in OSHA’s letter, employers could still be liable for a violation of the general duty clause. Given this, employers should evaluate their worksites and determine whether a policy prohibiting the listening to music on the job is appropriate.
Federal OSHA Assumes Jurisdiction Over Cabin Crews Onboard Aircrafts
In 2013, the Federal Aviation Administration (FAA) issued a final policy statement outlining three areas that OSHA could regulate for cabin crewmembers on aircraft in operation. 78 Fed. Reg. 52848. This policy statement allows OSHA to apply its hearing conservation standard (29 C.F.R. § 1910.95), bloodborne pathogen standard (29 C.F.R. § 1910.1030), and hazard communication standard (29 C.F.R. § 1910.1200) to cabin crewmembers. However, the policy statement does not apply to flightcrew members (i.e., pilots and co-pilots). The policy took effect September 26, 2013 and was enforced in early 2014.
Following the implementation of this policy, OSHA required State Plans, those states that estabish their own state run OSHA programs, “to either elect to amend their State Plans to cover aircraft cabin crewmembers on aircraft in operation, or to decline to exercise such authority, in which case coverage would remain a Federal OSHA responsibility.” According to a Federal Register notice issued today, “all affected State Plans declined. OSHA is hereby amending the State Plans’ coverage in all of the twenty-two (22) OSHA-approved State Plans covering the private sector to reflect the declination of State Plan coverage, and the continuation of Federal OSHA enforcement authority over the enforcement of these three occupational safety and health standards for aircraft cabin crewmembers while they are onboard aircraft in operation in the twenty-two (22) OSHA-approved State Plans that cover the private sector. The State Plan web pages maintained by OSHA have been updated to reflect this notice.”
The three OSHA standards apply only to cabin crewmembers on aircraft in operation. In its 2013 policy statement, the FAA defined “in operation” as “the time [an aircraft] is first boarded by a crewmember, preparatory to a flight, to the time the last crewmember leaves the aircraft after completion of that flight, including stops on the ground during which at least one crewmember remains on the aircraft, even if the engines are shut down.” An aircraft crewmember is any employee who is “assigned to perform dut[ies] in an aircraft cabin when the aircraft is in operation (other than flightcrew members).”
The application of these three standards along with OSHA’s regulations on recordkeeping (§ 1904) and access to employee exposure and medical records regulations (§ 1910.1020) apply to airline employees. Additionally, OSHA’s whistleblower protections (section 11(c) of the OSH Act, 29 U.S.C. § 660(c)) continues to apply to cabin crewmembers, as well.
OSHA remains preempted to enforce its standards on aircrafts in operation other than those specifically stated in the FAA policy statement. Additionally, the FAA stated in its 2013 policy that “the general duty clause will not be applied to the cabin environment…[and] [i]f the agencies later decide to add additional hazards including any hazards covered by the General Duty Clause, they will use a transparent process including notice and comment to adopt such changes.” OSHA cannot use the General Duty Clause to regulate potential hazards, such as cosmic radiation, ergonomics, heat stress, slip and falls or pinch points.
Airline employers should continue to ensure they have the appropriate bloodborne pathogen, hazard communication and hearing conservation programs and relevant training in place for aircabin crewmembers. Federal OSHA will continue with enforcement of these stanards for the airline industry even in states that operate their own State OSHA Plan.
OSHA Signals Its Regulatory Priorities in Fall Agenda
Twice a year, once in the spring and once in the fall, federal executive agencies, including OSHA, publish their expected rulemaking activity. Last week the Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions was released. This agenda lays out the regulatory priorities of over 60 federal agencies, departments, and commissions for the next 12 months and includes nineteen agenda items specific to OSHA.
Of note, OSHA plans to initiate a Small Business Regulatory Enforcement Fairness Act (“SBREFA”) review panel in January 2020 for a standard that would address workplace violence in the health care and social services industries. The January 2020 date is an extension of the original October 2019 deadline that was outlined in the spring 2019 regulatory agenda. The initiation of the review panel comes as the House of Representatives recently passed a bill that would require OSHA to develop a standard on the same issue. For more information on the House bill, click here to read an OSHA Law Blog post outlining the bill.
Additionally, OSHA plans to begin the process of analyzing comments that it received from requests for information regarding revisions to its lockout/tagout and powered industrial truck regulations. OSHA is seeking to revise both regulations as evolving technologies have affected each. OSHA hopes to bring both of the regulations up to date and in line with current consensus standards.
The fall regulatory agenda also included the anticipated promulgation of proposed rules. Specifically, OSHA intends to issue a notice of proposed rulemaking in April 2020 for its walking-working surfaces rule to clarify its requirements for stair rail systems. The Agency intends to clarify the requirement in light of having received feedback from stakeholders that the requirements were unclear. OSHA also intends to release a proposed rule amending the Cranes and Derricks in Construction Standard in May 2020. According to the agenda, the proposed amendments will include “correct[ing] references to power line voltage for direct current (DC) voltages as well as alternating current (AC) voltages; broaden[ing] the exclusion for forklifts carrying loads under the forks from ‘winch or hook’ to a ‘winch and boom’; [and] clarify[ing] an exclusion for work activities by articulating cranes” among other various corrections to the standard. The agenda also includes proposed rules for Communication Tower Safety, Welding in Construction Confined Spaces, Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, updates to the Powered Industrial Trucks standard to incorporate consensus standard provisions related to the design and construction of powered industrial trucks, and updates to the Hazard Communication Standard.
In addition to the upcoming proposed rules, OSHA has several agenda items that are in the pre-rule stage. These items include initiation a SBREFA panel in August 2020 for an Emergency Response rule, a July 2020 request for information for updates to the Mechanical Power Press rule, and the issuance of an advanced notice of proposed rulemaking in September 2020 for the Blood Lead Level for Medical Removal rule.
While the rulemaking process moves at a slow pace, employers should remain informed on OSHA’s anticipated regulatory actions and should consider participating in the rulemaking process to ensure their interests are made known and protected.
House Passes Workplace Violence Bill Despite Veto Threat
In a bipartisan 251 to 158 vote, the House of Representatives passed H.R. 1309, which would require the Department of Labor to develop a standard addressing workplace violence in the health care and social services industry. The bill would require that the Department of Labor develop and issue an interim rule on workplace violence prevention no later than one year after the date of enactment of the bill. Under the bill, the interim rule would require that employers in the health care and social services sectors “develop and implement a comprehensive workplace violence prevention plan to protect health care workers, social service workers, and other personnel from workplace violence.” The bill requires that the interim rule be based on OSHA’s own Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. The Department of Labor would then have to issue a final standard within 42 months of the enactment date.
The bill also outlines specific requirements for employers to be included in the final standard. It would require employers:
- Develop a workplace violence prevention plan;
- Conduct violent incident investigations;
- Provide training and education to employees who may be exposed to workplace violence;
- Maintain records related to workplace violence for at least five years;
- Provide an annual report to the Department of Labor detailing “the frequency, quantity, and severity of workplace violence, and any incident response and post-incident investigation[.]”; and
- Conduct an annual evaluation of the workplace violence prevention plan and make any necessary changes after the evaluation.
While the Democrat-sponsored bill received bipartisan support in the House, with 30 Republican votes, it faces an uphill battle in the Senate and in the White House. The Trump Administration has issued a Statement of Administrative Policy outlining concerns with the bill and sending a signal that a veto may be issued. In the statement, the administration argued that the bill “mandates adopting California’s healthcare workplace violence standards nationwide, which would undercut important principles of federalism and could put workers’ health and jobs in jeopardy.” The administration stated further that the timelines in the bill for issuing the interim, proposed, and final standards are inappropriate. The administration also pointed to the fact that OSHA had announced already plans for a Small Business Regulatory Enforcement Fairness Act (“SBREFA”) panel to address workplace violence issues and argued that the legislation would “short-circuit” the SBREFA process.
Regardless of fate of H.R. 1309, employers in the healthcare and social services sectors should have plans and procedures in place to protect their employees from workplace violence because, even without a standard in place, OSHA can and will issue citations under the general duty clause. In a recent case, the Occupational Safety and Health Review Commission upheld such a citation. Jackson Lewis recommends that employers in the healthcare industry review their current policies to ensure they are addressing workplace violence.
NACOSH To Meet in December
The National Advisory Committee on Occupational Safety and Health (NACOSH) will hold a meeting in Washington D.C. on December 12 starting at 9:30 am. NACOSH is comprised of 12 members appointed by the Secretary of Labor who advise, consult with, and make recommendations to the Secretary of Labor on matters relating to safety and health in the workplace. The Committee meets at least two times a year.
The Committee will meet at the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue NW, Washington, DC 20210 in Room N–5437, Conference Rooms A–D. The tentative agenda for the meeting includes:
1. An introduction and update from the Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health on key OSHA initiatives, and
2. Remarks from the Director of the National Institute for Occupational Safety and Health
Attendees who want to address NACOSH at the meeting must submit a request to speak, as well as any written or electronic presentation by December 5, 2019. More information on attending and or addressing NACOSH can be found in the Federal Register Notice of Meeting.
