The number of process safety management compliance inspections at oil refineries and chemical plants, as well as inspections involving workplace violence and ergonomics, are likely to increase under a new inspection strategy launched October 1 by the Occupational Safety and Health Administration. To read the full article, click here.

For the last several years, OSHA has expressed concerns regarding a host of employer practices it believes may result in underreporting of injuries and illnesses as depicted by several recent high-profile cases of alleged employer underreporting. Heightening OSHA’s interest is the position taken by some stakeholders that the annual injury and illness statistics published by the Bureau of Labor Statistics (BLS) underreports the true number of workplace injuries and illnesses due, in part, to employer incentive programs that discourage employees from reporting injuries and illnesses. The Agency has stated it will issue a final rule in the fall of 2015 that may make certain safety incentive programs illegal under OSHA standards and, just recently, OSHA sent such a proposed rule to the Office of Management and Budget (“OMB”) for review. If the Agency does issue this final rule, it may change the landscape for many employers who have had success with such programs in the past.

To read the full article, which I wrote for Wolters Kluwer’s Employment Law Daily, click here.

 

Under an exception to the rulemaking process, federal agencies may use legally nonbinding guidance documents to interpret regulations. This has led some U.S. senators not only to issue a broad pledge to restrict the practice when such guidance becomes a rule enforceable against a regulated community, but also to request that the Occupational Safety and Health Administration (OSHA) rescind guidance that newly interprets coverage under a rule aimed at preventing chemical disasters. To read the full article, written by Nickole Winnett, click here.

On October 5, 2015, OSHA submitted to the Office of Information and Regulatory Affairs (OIRA), a draft final rule for OSHA’s “Improve Tracking of Workplace Injuries and Illnesses.”  OIRA is the division within the President’s Office of Management and Budget (OMB) that reviews draft and final standards and regulations. Under Executive Order, all significant regulatory actions require OIRA review before agency actions can be implemented.  Generally, OIRA has up to 90 days to review a rule.

OSHA published a notice of proposed rulemaking for “Improve Tracking of Workplace Injuries and Illnesses,” in November 2013 to add electronic recordkeeping requirements that would require certain employers to electronically submit to OSHA injury and illness recordkeeping information on a quarterly or annual basis. Additionally, the proposed rule sought to establish a public searchable website where OSHA would make employers’ injury and illness records available to the general public.

In August 2014, OSHA issued a supplemental notice of proposed rulemaking to amend the proposed rule to include provisions that would (1) require that employers inform their employees of their right to report injuries and illnesses; (2) require that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and (3) prohibit employers from taking adverse [termination, reduction in pay, reassignment to less desirable position] action against employees for reporting injuries and illnesses.

The submission of this draft final rule to OIRA is a strong signal that this rule is in final stages and once it clears OIRA OSHA will have the green light to issue a final rule in the Federal Register.  What does this mean for employers?  It means that OSHA anticipates publication of this final rule very soon, likely by the end of the year, and if that happens it is likely OSHA will aim to have this rule in effect in January 2016.

 

Federal OSHA’s Occupational Injury and Illness Recording and Reporting Requirements (effective January 1, 2015) require employers to report in-patient hospitalizations, amputations and loss of an eye within 24 hours. The Virginia Occupational Safety and Health (VOSH) regulation was intended to mirror the federal requirements but a legislative drafting error resulted in the reporting period for in-patient hospitalizations, amputations and loss of an eye being reduced to 8 hours. Recognizing its mistake, Virginia is suspending enforcement of the 8 hour reporting requirement until the statute is amended so long as incidents are reported within the 24 hour federal deadline.

OSHA announced this week a shift in how it will evaluate inspections, recognizing that inspections are not all equal and that more-complex inspections deserve more weight. The complexity of an inspection affects the amount of time, manpower and other resources required by OSHA and this new tiered inspection system will reflect this complexity. Under the new system, “Enforcement Units” will be assigned to an inspection; the simplest inspection will be one unit and the most complex inspection could be as many as nine units. Dr. Michaels believes that this will allow OSHA to focus on “more impactful inspections” rather than the number of inspection completed each year.

The practical implication for employers is that starting October 1, 2015, they can expect to see an increase in the number of complex inspections performed by OSHA.  Specifically, OSHA notes that it will perform more inspections involving musculoskeletal disorders, chemical exposures, workplace violence, and process safety management violations. With a greater focus on these complex safety and health inspections, NOW is the time to review your policies and procedures to ensure that they meet all OSHA requirements.

More details are available here .

OSHA’s new reporting requirements began on January 1, 2015. Under these requirements, employers in federal OSHA jurisdiction are required to report to OSHA any work-related fatality or any work-related injury resulting in an employee being formally admitted to the hospital or any work-related amputation or loss of an eye. Since the implementation of these new requirements, OSHA estimates that it is receiving 200 to 250 reported incidents each week.

According to OSHA, roughly 40 percent of those reported injury cases are resulting in an on-site inspection by the agency. In about 50 percent of the cases OSHA is instituting the “rapid response investigation” and sending the employer a letter requesting additional information about the incident and the employer’s corrective actions. In roughly 10 percent of the cases, no agency action is taken either because the event was not reportable under the new requirements or OSHA does not have jurisdiction.

To date not all state plans have adopted the new reporting requirements and some have, but have not adopted them verbatim. For example, Kentucky previously required employers to report amputations within 72 hours. However, Kentucky OSHA’s definition of amputation is limited to amputations including bone-loss. In revising its reporting requirements, Kentucky simply added the reporting of the loss of an eye. So Kentucky chose to keep the 72 hour requirement and not adopt federal OSHA’s 24-hour time period for amputations. Additionally, Kentucky OSHA did not revise its definition of amputation to include amputation of finger-tips without bone loss.

OSHA has compiled a table listing the status of each state’s adoption of the new requirements.

 

Many more franchisors are likely to be judged to have a joint employer relationship with franchisees, subjecting them to enforcement by the Occupational Safety and Health Administration, under a draft policy reported to be circulating within the Department of Labor (DOL). To read the full article, written by Tressi Cordaro, click here.

In an interpretation letter dated June 1, 2015, OSHA answered the question “Under OSHA regulations 29 CFR 1926.95(a) who is responsible for the laundering of fire retarding clothing that is provided to employees?” The section states that protective equipment “shall be provided, used, and maintained in a sanitary and reliable condition” but does not elaborate on how this should be achieved.

The letter clarifies that the standard does not per se prohibit home laundering of FR and arc-rated clothing. However, the employer is responsible for making sure that laundering does not compromise the protective properties of the clothing. According to the letter, “If employers rely on home laundering of the clothing, they must train their employees in proper laundering procedures and techniques, and employers must inspect the clothing on a regular basis to ensure that it is not in need of repair or replacement. If an employer cannot meet these conditions, then the employer is responsible for laundering the FR and arc-rated clothing.” Practically speaking, home laundering is a risky proposition. If an employer is unwilling or unable to comply with the requirements for home laundering, then the employer is responsible for laundering the FR and arc-rated clothing.