The National Labor Relations Board issued  Memoradum OM 14-77 on August 8, 2014, informing all regional directors and resident officers that they should notify parties of their right to file a complaint with OSHA if they believe that an employer may have violated a health or safety standard or an anti-retaliation provision of the Occupational Safety and Health Act.  The memorandum notes that Board employees should notify parties of their rights to file an OSHA safety complaint or whistleblower complaint only when they believe that a possible violation of the Act exists.

The memorandum also notes that the NLRB will coordinate case proceedings with OSHA, as appropriate, when it learns during processing of an unfair labor practice charge that OSHA is handling a parallel investigation.

This memorandum is another step by OSHA in coordinating investigations with other federal agencies and expanding the avenues in which employees are made aware of their rights to file both safety complaints and anti-retaliation complaints against their employers.  As with the recent Memorandum of Understanding issued with the Federal Motor Carrier Safety Administration, it is likely that more OSHA complaints will be filed and more investigations will be conducted that employers will need to respond to.

 

 

 

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

MSHA Proposes Far-Reaching Penalty and Citation Changes. MSHA has proposed profound changes to its Part 100 penalty assessment process and seeks to change how inspectors determine “serious” violations. It appears the changes would bypass controlling law on “significant and substantial” violations. MSHA also proposes to limit the authority of the Federal Mine Safety and Health Review Commission (FMSHRC) to review contests of a violation or penalty.

More Sites Added to OSHA’s Severe Violator Enforcement Program. The number of sites added to OSHA’s Severe Violator Enforcement program (SVEP) has increased by 23% from last year. A total of 423 sites were SVEP-listed as of July 1, when the program entered its fifth year, compared to 343 last year, an increase of 80.

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In April 2013, OSHA launched an enforcement initiative aimed at reducing injuries and illnesses suffered by temporary workers.  According to OSHA, the temporary worker industry has grown 125% since 1990 and approximately 10 million employees are in temporary jobs per year.  Given the increased reliance on staffing agencies and temporary workers, OSHA has made it a priority to ensure that temporary employees are equally protected as direct-hire and permanent employees.

As a general rule, OSHA considers the employment relationship between host employers, staffing agencies and temporary workers as “joint.”  That is, the host employer and the staffing agency are joint employers of the temporary worker.  According to a July 15, 2014 memorandum to Regional Administrators, “The key attributes of the traditional employer-employee relationship are shared by two or more employers in such a manner that they each bear responsibility for compliance with statutory and regulatory requirements.”  Under this structure, OSHA believes that both employers share control over the worker and therefore share responsibility for the worker, including safety and health.

This newly issued memo defines “temporary workers” as “workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis.”  The memo echoes previous statements made by OSHA as to responsibilities or best practices for managing the safety and health of temporary employees.  These best practices include:

  • Host employer and staffing agency should consider hazards they are best positioned to prevent and correct. For example, host employers are generally better suited to address site specific hazards, such as machine guarding.  In comparison, staffing agencies may be better positioned to address general training or conduct audiometric testing if employees are exposed to high noise levels.
  • Host employer and staffing agency should both perform hazard assessments of the worksite.  This may include the staffing agency performing an actual inspection of the workplace and identifying specific hazards present and/or reviewing job assignments or job hazard analyses to ensure that such hazards are eliminated or employees are properly protected and trained.
  • Host employers must record work-related injuries and illnesses of temporary employees if they supervise those employees on a day-to-day basis.  OSHA defines day-to-day as “…the employer supervises the details, means, methods and processes by which the work is to be accomplished.”  For example, if the staffing agency has no supervisory personnel on site and temporary employees get job assignments or instructions from the host employer’s supervisors then the host employer must record work-related injuries or illnesses of those temporary workers.
  • Host employer and staffing agency should communicate with each other regarding temporary workers, particularly when an employee is injured.  Host employers should notify staffing agencies when a temporary worker is injured and staffing agencies should notify host employers as to any medical treatment or lost time.

The memo instructs compliance officers who are conducting inspections at worksites with temporary workers to review contracts between the host employer and the staffing agency to determine if safety and health responsibilities are spelled out in the contract.  Employers may wish to consider reviewing existing contracts to determine whether they address any of the following issues:

  • What employer, if any, is obligated to develop and maintain a written safety and health program
  • Whether the staffing agency will conduct periodic worksite inspections to examine the workplace to be able to determine what conditions exist at the facility and what hazards may be encountered
  • To what extent the host employer and the staffing agency will each provide safety and health training and whether the each employer will have an opportunity to audit or review as necessary any training and documentation of training provided to temporary employees
  • Which employer will provide at no cost to temporary employees, all site-specific personal protective equipment as required by the temporary workers job duties

Further, the memo instructs compliance officers during inspections to consider whether host employers and staffing agencies have met their responsibilities for safety and health of temporary workers.  Additionally, compliance officers can issue citations to either entity or to both depending on the specific facts.  For example, if a temporary worker operated a forklift at a host employer facility and was not trained, OSHA may consider citing the staffing agency for failing to provide formal training and also cite the host employer for failing to provide practical training, such as demonstrations of operation.

OSHA has indicated it anticipates issuing a compliance directive on temporary workers, as well as, bulletins on the various aspects of temporary workers, such as whistleblower protection rights, personal protective equipment, training, hazard communication and noise.

A copy of the policy memorandum can be found online here.

Each year since 1976, the appropriations bill contains a rider that prohibits OSHA from spending funds on the enforcement of OSHA rules, regulations and standards for farming operations with 10 or fewer non-family employees.  And, there is no exception to this prohibition, such as for fatality or imminent danger cases.

OSHA has a directive on Enforcement Exceptions and as to farmers it states:

Enforcement Guidance for Small Farming Operations. The Appropriations Act exempts small farming operations from enforcement of all rules, regulations, standards or orders under the Occupational Safety and Health Act.

Under this enforcement guidance a farming operation is exempt from all OSHA activities if it: (1) Employs 10 or fewer employees currently and at all times during the last 12 months; and (2) Has not had an active temporary labor camp during the preceding 12 months. Note: Family members of farm employers are not counted when determining the number of employees.

On July 29, 2014, OSHA issued a “Policy Clarification on OSHA’s Enforcement Authority at Small Farms.”  In this policy, OSHA defines “farming operation” as:

Any operation involved in the growing or harvesting of crops or the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations. Crop farming operations activities include preparing the ground, sowing seeds, watering, weeding, spraying, harvesting, and all related activities necessary for these operations, such as storing, fumigating, and drying crops grown on the farm.

The policy explains that OSHA considers onsite storage or the sale of grain on a farm as “related activity” and therefore small farms would still be exempt from OSHA jurisdiction.  However, OSHA claims that a small farm with grain handling operations for grain grown on other farms would not be exempt, nor would a small farm that has a food processing facility for items like processing cider from apples or milling flour and making baked goods.  These activities would be treated as grain handling and food processing operations and not small farming operations and therefore would be subject to OSHA jurisdiction even if they take place on a small farm.

A copy of the policy can be found online here.

The Occupational Safety and Health Administration (“OSHA”) recently entered into a Memorandum of Understanding (“MOU”) with the Federal Motor Carrier Safety Administration (“FMCSA”).  The MOU is intended to facilitate coordination and cooperation between the two agencies when enforcing the anti-retaliation provision of the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105, and the anti-coercion provision in 49 U.S.C. § 31136(a)(5).

Under the MOU, OSHA and FMCSA agree to share information with the complainant and each other in order to further the purpose of the anti-retaliation and anti-coercion provisions.  Specifically, when an individual notifies FMCSA of alleged retaliation as a result of engaging in STAA-protected activity, FMCSA will notify that individual of their right to file a complaint with OSHA and seek a personal remedy.  Similarly, when OSHA receives a complaint under STAA, it will promptly provide FMCSA with a copy of the individual’s complaint and any findings and preliminary orders that OSHA issues.  In addition, if an individual further notifies OSHA of other safety allegations under the FMCSA, OSHA will provide the individual with the FMCSA complaint hotline number and e-mail address.

Each agency also agrees to share all information it obtains concerning a particular allegation with the other agency when requested and exchange data as expeditiously as practicable.

Finally, both agencies agree to provide training to appropriate personnel from the other agency.  FMCSA will provide training to OSHA personnel on how to recognize violations of FMCSA safety regulations and allegations of coercion that should be referred to FMCSA, and OSHA will provide training to FMCSA personnel on how to recognize allegations of retaliation or reprisal and other safety-related allegations that should be referred to OSHA.

This coordination means that employers will likely be subject to investigation by both agencies even when the complaints are frivilous or not submitted in good faith.

In the latest of a series of recent Executive Orders signed by the President relating to federal contractors, the President yesterday signed the “Fair Pay and Safe Workplaces Executive Order.”  For details regarding this EO and the new requirements facing government contractors, please click here to read the full post on our Affirmative Action & OFCCP Law Advisor Blog.

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

Judge Makes Latest Move in Dispute with DOL Solicitor over Mine Act Provision. A dispute over a proposed settlement agreement in a case before the Federal Mine Safety and Health Commission has devolved into a tit-for-tat exchange between a Commission administrative law judge (ALJ) and the U.S. Department of Labor’s Office of the Solicitor (SOL) over a provision of the Mine Act.

OSHA Issues Warning about Heat Illness. OSHA kicked off its annual Heat Illness Prevention Campaign by warning employers who fail to take precautions to protect employees from recognized heatstress hazards they could face citations under the agency’s general duty clause.

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 2005, California OSHA (Cal-OSHA) promulgated its Heat Illness Prevention standard, Section 3395, regulating employees’ exposure to heat for all outdoor places of employment.  This standard is unique to California.  Neither Federal OSHA nor any other state operated OSHA program has developed a similar standard governing heat exposure.

While Federal OSHA has no specific standard governing heat illness, the Agency has increased the number of heat-related inspections, as well as the number of General Duty clause or 5(a)(1) citations issued to employers.  Between 2012 and 2013, a total of 266 heat-related inspections were conducted and 21 General Duty clause citations issued for heat-related injuries.

At an American Bar Association meeting earlier this year, the Agency indicated that OSHA’s Directorate of Enforcement Programs is working with the Office of Occupational Medicine on a heat illness project to analyze heat enforcement cases from 2011 to 2013.  The Agency’s objective is to determine the various risk factors that contributed to the heat illness in those cases.  Federal OSHA could use this data in developing a proposed rule for heat illness prevention, however, the Agency has not hinted at this possibility.

In May, Cal-OSHA submitted a draft of proposed amendments to its Heat Illness Prevention standard to the California Occupational Safety and Health Standards Board (Standards Board). As a basis for the proposed amendments, Cal-OSHA has stated that the amendments are intended to clarify the existing requirements of Section 3395.  Among the proposed amendments are:

  • Clarifying that water be provided at no cost to employees.
  • Clarifying that water provided must be fresh, pure, suitably cool and within 400 feet of employees.
  • Lowering the temperature for when shade must be provided from 85 degrees to 80 degrees.
  • Lowering the temperature at which high heat procedures must be implemented from 95 degrees to 85 degrees.
  • Adding to the high heat procedures a requirement that employers must designate and authorize an employee at the worksite to call for emergency medical services.
  • Adding a requirement for a pre-shift meeting before beginning work to review high heat procedures, encourage employees to drink water and to take cool-down breaks.
  • Adding a requirement that agricultural employers must ensure that when an employee works two continuous hours in temperatures equal to or exceeding 95 degrees the employee takes a ten minute recovery period.
  • Adding requirement that the written heat illness prevention plan be available in both English and the language understood by the majority of the employees.

If the proposed amendments are approved by the Standards Board, then a public comment period and a public hearing would be set.  As of now these timeframes are unknown.

A copy of the draft proposed amendments to Cal-OSHA’s Heat Illness Prevention standard, Section 3395 can be found online here: http://www.dir.ca.gov/dosh/doshreg/heatillprevent.html

 

On April 11, 2014 OSHA officially promulgated final standards updating the general industry and construction standards for work on electrical power generation, transmission and distribution installations – 29 C.F.R. § 1910.269 and 29 C.F.R. Part 1926, Subpart V.  OSHA also issued final standards covering electrical protective equipment, §§ 1910.137 and 1926.97.  The final standards contain a delayed effective date for some provisions until April 1, 2015, such as the requirement for fall protection for qualified employees changing locations on poles and similar structures and application of the new requirements for minimum approach distances.  Other requirements were set to become effective next month on July 10, 2014.

However, on June 20, 2014, OSHA issued a memorandum to all Regional Administrators setting out a temporary enforcement policy for the updated standards.  This memorandum extends the compliance date for all requirements through October 31, 2014.

OSHA has instructed Regional Administrators not to issue citations from July 10, 2014 through October 31, 2014, to employers under either the updated 1910.269 or 1926, Subpart V standard if they are in compliance with the old requirements of § 1910.269.  Therefore, employers in both construction and operation and maintenance of generation, transmission and distribution (general industry and construction) will have the option of complying with the new updated standards or follow the old requirements of § 1910.269 through October 31, 2014.   For employers engaged in construction work, they will be considered to be in compliance with the old version of § 1910.269 if they are also in compliance with 29 CFR 1926, Subpart M requirements as they apply to fall protection in aerial lifts.

This memorandum also requires Area Directors to submit any proposed citation under the updated standards to OSHA’s National Office and the OSH Division of the Solicitor’s Office for approval. The memorandum states:

“[i]f, on or after July 10, 2014, an Area Director determines that an employer is not in compliance with the prior version of 29 CFR 1910.269, citations may be issued, as appropriate, for violations of any effective and applicable provision of revised 29 CFR 1910.269 and 29 CFR 1926, Subpart V.  Any citation proposed to be issued under this temporary enforcement policy shall be forwarded to the Directorate of Enforcement Programs or the Directorate of Construction, as appropriate, through the Regional Office for clearance, which will include review by attorneys in the OSH Division of the Solicitor’s Office.”

Additionally, OSHA has extended the compliance date for certain requirements under the electrical protective standards for construction and general industry.  Specifically, under this temporary enforcement policy OSHA will not issue citations under 29 CFR 1910.137(b) or 29 CFR 1926.97(b).

To avoid citations, affected general industry and construction employers are encouraged to make sure they are in compliance with either the updated standards under § 1910.269 or Subpart V or are in compliance with the previous version of § 1910.269.

As the days grow warmer, California employers with outdoor places of employment should think about compliance with California’s Heat Illness Prevention Regulations (Cal. Code of Regs. tit. 8, § 3395). To comply with the regulations, California employers should take four essential steps:

  • Develop and implement written procedures for addressing heat illness prevention;
  • Train employees and supervisors;
  • Provide adequate water; and
  • Provide adequate shade.

To read the rest of this article, featured on Jackson Lewis’ website, click here.