In a memorandum dated February 11, 2015, Tom Galassi, Director of Directorate of Enforcement Programs, announced that the Severe Violator Enforcement Program (SVEP) has been expanded to include upstream oil and gas hazards as High-Emphasis Hazards. Interestingly, the memo was not posted on OSHA’s website until late March after being in effect for over a month.

SVEP was introduced in 2010 expressly “to more effectively focus enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees through willful, repeated, or failure-to-abate violations of the OSH Act.” (OSHA “Severe Violator Enforcement Program White Paper” January 2013.) The memorandum states that upstream oil and gas drilling and well servicing employers are being added to SVEP because they “have experienced a fatality rate that has ranged from five to eight times greater than the national average for all U.S. Industries.” [U.S. DOL BLS].

The implications for employers who are classified by NAICS (codes) as Oil and Gas Production Services, Drilling and Well Servicing/Upstream Oil and Gas Industry is that any time an incident meets the SVEP criteria, the case will now be considered a severe violator enforcement case. In a non-fatality inspection, if OSHA finds two or more willful or repeated violations or failure-to-abate notices, it will qualify as a severe violator enforcement case.

The sanctions available to OSHA under SVEP are more extensive including; ability to conduct corporate-wide inspections, mandatory follow-up inspections of the same facility, enhanced abatement and settlement terms, and the publication of a press release for every SVEP citation, as well as posting quarterly on the OSHA website a list of SVEP violators. Enhanced Settlement Agreements (ENHSAs) may require among other things that an employer hires a qualified safety and health consultant; the settlement agreement itself may apply corporate-wide regardless of whether a particular worksite has been cited; and an employer may have to submit its Injury and Illness Logs on a quarterly basis and consent to OSHA conducting inspections based on those logs. Finally, once an employer becomes a “severe violator”, it will keep that classification for at least three years before being eligible for removal from the program.

The February 11^th, 2015 memorandum can be read in full at https://www.osha.gov/dep/enforcement/memo_SVEP_oilandgas_022015.html.

OSHA announced in April 2013 its initiative to protect temporary workers. Since then, OSHA has published three bulletins intended as guidance documents for situations where a staffing agency and a host employer are considered joint employers, sharing the responsibility to meet the health and safety requirements under the OSH Act. The two most recent bulletins cover Personal Protective Equipment (PPE) and Whistleblower Protection Rights.

The recurring theme of the bulletins emphasized by OSHA is the joint responsibility both employers assume for worker safety and health and the fact that neither the staffing agency nor the host employer is exempt from liability because the other failed to fulfil its responsibilities. OSHA encourages both parties to have a written plan in place before temporary workers are employed. However, such a plan doesn’t absolve either the staffing agency or the host employer from legal responsibility but it may clarify expectations.

When an employer deems PPE necessary, the employer provides both equipment (at no cost to the employee) and training to its employees. The employer is also responsible for ensuring that the PPE is not defective and if damaged, is not used. Additionally, there may be occasions when a medical evaluation is needed for the use of respiratory protection and this too is the employer’s responsibility. In the case of temporary workers, the host employer generally assumes responsibility for providing the proper PPE and training because it is most familiar with, and in the best position to assess, potential hazards. However, according to OSHA the staffing agency as a joint employer should ensure that the host employer provides the proper PPE and training and to that end, the staffing agency should also assess the potential hazards on an ongoing basis. In OSHA’s opinion, as joint employers, both the staffing agency and the host employer are liable for workers’ safety and health regardless of which one assumed responsibility for providing and paying for adequate PPE and training.

The third bulletin provides guidance regarding Whistleblower Protection Rights. Under section 11(c) of the OSH Act, workers who report injuries or raise safety and health issues with their employer or OSHA are protected from retaliation by the employer. Such action by an employee is considered a “protected activity.” According to OSHA, this protection extends to temporary workers who are protected from retaliation by both the staffing agency and the host employer. If a host employer requests the staffing agency to remove a temporary worker from its worksite after the temporary worker raised health and safety concerns or reported an injury, and the staffing agency obliges by moving the temporary worker to a new worksite, the staffing agency may still be liable for retaliation against that temporary worker. Temporary workers may file complaints of retaliation with OSHA against either the staffing agency or the host employer, or, in some circumstances both.

All three bulletins may be accessed in full on OSHA’s Temporary Worker Initiative page https://www.osha.gov/temp_workers/index.html.

At a recent American Bar Association meeting, Tom Galassi, Director of Enforcement Programs for OSHA, stressed the agency’s continued focus on key enforcement initiatives, such as temporary workers, corporate-wide settlement agreements and the continued use of the severe violator enhancement program (“SVEP”).

Inspection Statistics

Mr. Galassi discussed inspection statistics and noted that OSHA has committed to conducting more industrial hygiene/health inspections in fiscal year 2015. In FY 2014 81% of the inspections conducted were safety related in comparison to the 19% health inspections. Year to date for FY 2015 79% of inspections were safety focused and 21% were health focused. It seems the agency would like to balance out the proportion of inspections.

Mr. Galassi discussed that the overall number of inspections for FY 2014 are down; however, this is likely due to the government shutdown for three weeks in 2014. Mr. Galassi stated that he believes without the shutdown the total inspections conducted would have been on par with previous years, which are roughly 40,000 inspections a year.

For FY 2014, 26% of the inspections conducted were in full compliance with applicable OSHA standards, meaning no citations issued to 26% of the employers who were inspected in 2014. OSHA has seen a steady increase in this rate since FY 2010.

Mr. Galassi discussed that the number of complaint inspections are up. There was a 3% increase in the number of complaint inspections between FY 2013 and FY 2014 with most of these inspections being in General Industry. Interestingly, there has been a downward trend in number of complaint inspections in the construction industry.

Mr. Galassi also discussed the top ten OSHA citations for FY 2014. Over the last several years this top ten list continues to remain consistent. The top four categories of hazards include: falls, struck by, amputations, and electrical. The top ten OSHA citations for FY 2014 are:

1. Fall Protection
2. Hazard Communication
3. Scaffolding
4. Respiratory Protection
5. Powered Industrial Trucks
6. Lockout/Tagout
7. Ladders
8. Electrical, Wiring Methods
9. Machine Guarding
10. Electrical, General Requirements

Severe Violator Enhancement Program (“SVEP”)

OSHA continues to utilize the Severe Violator Enhancement Program (“SVEP”) as a key enforcement initiative. According to Mr. Galassi, on February 11, 2015, oil and gas hazards were incorporated into SVEP high-emphasis hazards. The agency’s intention is to include upstream oil and gas hazards such as those in production services, drilling and well servicing, including fracking. However, Mr. Galassi did not identify the specific hazards that would be part of the high-emphasis hazards under SVEP. Mr. Galassi noted that the SVEP compliance directive will be updated to include upstream Oil & Gas industry NAICS 211111, 213111 and 213112 — Oil and Gas Production Services, Drilling and Well Servicing/Upstream Oil and Gas Industry. Although Mr. Galassi noted these changes took place February 11, 2015, we were unable to locate any new enforcement guidance on OSHA’s website pertaining to SVEP.

Since the implementation of SVEP, there have been 474 SVEP cases. Of the 474, the majority of cases are related to citations of high-emphasis hazards as outlined in the SVEP Directive, with only 2% relating to Process Safety Management. According to OSHA, approximately 60% of the SVEP cases to date are in construction. Roughly 25% of the 474 total cases are fatalities.

New Reporting Requirements

Mr. Galassi discussed recent data from the new reporting requirements which were implemented January 1, 2015. Mr. Galassi stated that OSHA intends to conduct on-site inspections for all fatalities reported as well as any incident involving the hospitalization of two or more employees. To date, 2400 reports were made under the new reporting requirements. Of the 2400 reports, in 35% of those OSHA conducted an on-site inspection. A small percentage of reports either were not work-related or not covered by the new reporting requirements. The remaining 45% OSHA utilized its “Rapid Response Investigation” and sent employers letters requesting information about the employer’s investigation into the incident, its root cause analysis and corrective action.

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Agency Interpretive Letters Not Subject to Rulemaking, High Court Rules. The Supreme Court has held that the U.S. Department of Labor’s Wage and Hour Division (WHD) did not need to undergo Administrative Procedure Act (APA)-mandated notice-and-comment rulemaking when it issued interpretations of its regulations that conflicted significantly with interpretations WHD adopted earlier. Perez v. Mortgage Bankers Association, et al., No. 13-1041, 2015 U.S. LEXIS 1740 (Mar. 9, 2015).

Judge Finds No Basis for MSHA Housekeeping Citation. A judge has vacated a citation, and the associated $12,248 fine, after determining a contractor had not violated the Mine Safety and Health Administration’s housekeeping standard at a Nevada gold mine.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

OSHA Issues Enforcement Guidance for HazCom Compliance on Mixtures. The Occupational Safety and Health Administration has backed up its pledge, made in November, not to cite manufacturers or importers, including product formulators, if they are unable to develop hazard communication program materials for chemical mixtures in compliance with the agency’s revised Hazard Communication Standard (HCS) by the June 1, 2015, deadline.

MSHA Issues Clarifications to Civil Penalty Proposal. Responding to concerns raised by stakeholders, the Mine Safety and Health Administration has clarified the negligence and gravity classifications in the agency’s proposed rule to amend its civil penalty procedures. 80 Fed. Reg. 7393.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

In a memorandum dated January 30, 2015, OSHA announced an update to Appendix A of its “Enforcement Exemptions and Limitations under the Appropriation Act” Directive (CPL 02-00-051) for 2015. Appendix A outlines the list of small employers who are exempted from safety programmed inspection under the “Appropriation Act” exemption.

Under the terms of the Appropriations Act, limitations are placed on OSHA’s authority over small employers in low-hazard industries. Employers in low-hazard industries who currently have ten or less employees, and who had ten or less employees at all times over the previous 12 months, are exempt from programmed inspections for that calendar year. Low-hazard industries are identified by the North American Industry Classification System (NAICS) Codes for industries with a Days Away, Restricted, or Transferred (DART) occupational injury and illness rate below the national private sector rate of 1.7 per 100 workers for 2013.

Before conducting a programmed safety inspection, the CSHO must determine whether or not the employer is exempt under the Appropriate Act exemption and if the employer is exempt, the CSHO should not conduct the planned program inspection. Dr. Michaels advises CSHOs to be vigilant in choosing the correct NAICS code.

Exemption privileges for small employers do not apply if an inspection is triggered by a complaint from a current employee, concerns alleging imminent danger or health hazards, or employment accidents involving a fatality of one or more employees or hospitalization of two or more employees.

Some industries whose small employers have newly earned the exemption from programmed inspections for 2015 include:

• solar power generation plants (NAICS 221119),
• tile and terrazzo contractors (NAICS 238340),
• industrial gas manufacturing (NAICS 325120),
• convenience stores (NAICS 445120), and
• pump and pumping equipment manufacturers (NAICS 333911).

Some industries whose small employers lost the exemption include:

• natural gas distribution (NAICS 221210),
• power and communication line construction (NAICS 237130),
• electrical contractors (NAICS 238210),
• painting and wall covering contractors (NAICS 238320),
• breakfast cereal manufacturing (NAICS 311230), and
• plumbing fixture manufacturing (NAICS 332913),

The memorandum and updated Appendix A may be viewed on OSHA’s website.