Employers whose employees may be exposed to hazardous chemicals in the workplace must train their employees on the Occupational Safety and Health Administration’s new labeling elements and new Safety Data Sheet format by December 1, 2013.  Additional details can be found here.

Property owners wishing to prohibit concealed firearms from being carried on their property must post officially approved signage conspicuously at the entrance of their building, premises or real property, according to a regulation published by the Illinois State Police. Owners of parcels where concealed carry is prohibited by the Illinois Firearms Concealed Carry Act also must post the required sign in the same manner.  Read the full article here.

Their regular duties put on hold by the government shutdown, the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA) are operating under contingency plans to guard against imminent safety and health threats, while legal challenges to these agencies’ enforcement proceedings have largely been suspended.
MSHA’s plan to weather the shutdown is to keep 41 percent of its workforce of 2,355 on the job. This is in sharp contrast to OSHA, which said it requires just 230, or 10 percent, of its 2,235 employees to address essential functions.

The mine safety agency’s employees will be used to continue impact inspections, which target mines MSHA believes have a history of putting miners at risk. Hazard-specific inspections aimed at conditions and practices that have led to recent mine fatalities and serious injuries will continue. Also undisturbed will be investigations into accident and miners’ safety complaints, as well as selective sample analyses. To support these activities, a minimal level of supervisory staff will be maintained at all of MSHA’s district and field offices.

MSHA also said it would continue to perform certain plan reviews and approvals, provide information technology support, maintain a minimal emergency response presence and provide security at the Mine Academy and at its facility in Triadelphia, WV.

OSHA said it will continue to enforce both imminent danger situations and activities involved in responding to workplace fatalities and catastrophes. In addition, OSHA will maintain staff to respond to emergencies and to safety and health complaints or other information deemed to present a high risk of death or serious harm. A key function of its compliance staff during the shutdown will be to assist in tracking and processing open cases/citations to ensure statute of limitations dates do not lapse.

OSHA’s 10 regional offices will remain open with minimal staff. Senior compliance officers specializing in safety and in health (one each) will staff each of its 92 field offices, and its Salt Lake City Technical Center will retain two senior chemists and two industrial hygienists from its health response unit.

Meanwhile, with staffing at the Office of the Solicitor of Labor cut by 90 percent and the Office of Administrative Law Judges cut to zero, Department of Labor attorneys are handling only core legal services required of DOL agencies and cases involving human life or property protection. Four DOL attorneys remain assigned to MSHA. Attorneys will be added in cases where federal court litigation or statutes of limitations cannot be adjusted. However, the strategy for most cases will be to seek extensions, a move that will further clog the system and aggravate the case backlog.

Silica (quartz) is one of the most common minerals on earth and contained in or critical to the production or manufacturing of an endless array of products and industries, like electronics, concrete, glass, brick, foundries, oil and gas, transportation and construction.  The Occupational Safety and Health Administration (OSHA) has proposed a rule that would cut in half the permissible exposure limit (PEL) for respirable silica dust, and includes two standards:  one for general industry and maritime employers, and the other for construction industry employers.  Henry Chajet and I have developed a 60-minute webinar, where we explain the proposed silica regulations (which were published in the Federal Register on September 12, 2013), the potential impact those regulations may have on the workplace, and how to effectively participate in the rulemaking process.  You can access the webinar by clicking here.

In the wake of the West, Texas fertilizer plant explosion, three federal agencies have issued an advisory on how to store, handle and manage ammonium nitrate (AN) safely. The 19-page advisory from the EPA, OSHA and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) focuses on high density, solid AN pellets and beads (prills) used in fertilizers, and details lessons learned from previous AN disasters. The EPA’s website contains the full text of the advisory as well as information on EPA Risk Management Plans. 

The agencies said their advisory would be updated after more information about the Texas explosion—which remains under investigation—is obtained.  15 people, including eight firefighters, died in the West Fertilizer Co. disaster in April.

According to the advisory, one of the key lessons learned from previous disasters is that the conditions of storage and materials co-located with AN are crucial to its safety and stability. Another lesson learned, according to the advisory, is that adding heat to break up clumps of AN can trigger a general detonation. The advisory also provides recommendations for hazard reduction that cover: storage/process conditions to avoid; building design; storage scenarios such as in bags, drums and in bulk; and fire protection. Other sections of the document address community emergency planning, emergency response, information resources, references, and applicable statutes and regulations.

In August, President Obama issued a directive aimed at improving chemical safety coordination among federal agencies and their state and local partners; enhancing information sharing; modernizing policies, regulations and standards; and working with stakeholders to identify best practices. The directive established a Chemical Facility Safety and Security Working Group, which facilitated the development of the advisory.

An employer may not be held liable for a violation of the Occupational Safety and Health Act (“OSHA”) based solely on a supervisor’s knowledge of his own misconduct, the U.S. Court of Appeal for the Eleventh Circuit in Atlanta has ruled in a case of first impression for the circuit. ComTran Group v. U.S. Dep’t of Labor, No. 12-10275 (11th Cir. Jul. 24, 2013). Reversing the Occupational Safety and Health Review Commission’s decision that the employer violated OSHA, the Court concluded the Commission erroneously had relieved the Secretary of Labor of her burden to prove the employer’s knowledge of the violation by holding that the supervisor’s knowledge of his own misconduct could be imputed to the employer.
 
The Court joins the Third, Fourth, Fifth and Tenth Circuits in so ruling. Click here for additional details.
 

Under the Federal Aviation Administration (“FAA”) Modernization and Reform Act of 2012, Congress gave the FAA six months to issue a policy statement outlining those instances where OSHA could exercise jurisdiction over the safety and health of flight attendants. PL 112-95, Feb. 14, 2012, 126 STAT. 135.

On August 27, 2013, the FAA issued a final policy statement outlining three areas that OSHA could regulate for cabin crewmembers on aircraft in operation. 78 FR 52848. This policy statement will allow 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 takes effect September 26, 2013, but OSHA will not begin to enforce the standards until March 26, 2014. During this six-month period, OSHA will “engage in outreach and compliance assistance activities” with the airlines.

The three OSHA standards will apply only to cabin crewmembers on aircraft in operation. In its 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).”

According to the Federal Register Notice, the FAA and OSHA do not anticipate that OSHA will need to conduct enforcement inspections on board aircraft. OSHA’s bloodborne pathogen, hazard communication and hearing conservation standards require employers to develop and implement programs for each of these areas for affected employees. The FAA and OSHA anticipate that enforcement of these standards can be done by a review of airlines programs to verify compliance without having to conduct an investigation on board an aircraft.

While the enforcement of these three standards will be new to the airline industry, OSHA’s regulations on recordkeeping (§ 1904) and access to employee exposure and medical records regulations (§ 1910.1020) have always applied to airline employees. Additionally, OSHA’s whistleblower protections (section 11(c) of the OSH Act, 29 U.S.C. § 660(c)) continue to apply to cabin crewmembers.

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 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 ensure they have the appropriate bloodborne pathogen, hazard communication and hearing conservation programs and relevant training in place for aircabin crewmembers prior to the March 26, 2014, enforcement date.

In the wake of the devastating West Texas fertilizer plant explosion in April, the federal government is moving to improve chemical facility safety and security. We anticipate a number of significant government proposals and actions over the next year.

The Presidential Executive Order of August 1, 2013, “Improving Chemical Facility Safety and Security,” directs the formation of a Working Group made up of the heads of six federal departments (the Departments of Homeland Security, Agriculture, Justice, Labor, Transportation and the Environmental Protection Agency). Over the next nine months the group is tasked with implementing and creating plans for:

  • improving operational coordination with state and local partners;
  • enhancing federal agency coordination and information sharing;
  • modernizing policies, regulations and standards; and
  • working with stakeholders to identify best practices. 

A plan for a regional test program will be developed to ensure that regulators and emergency responders have ready access to key information to prevent, prepare for and respond to chemical incidents. The Working Group will consult with the Chemical Safety Board (CSB).

The EO directs agencies to examine new options for ammonium nitrate and other chemical storage, handling and sales, including regulatory and legislative initiatives, and additions or changes to current federal chemical risk management programs.

Crisis Management: The August 1, 2013, EO demonstrates why the objectives of successful crisis management and financial risk reduction require experience with the multiple agencies involved and legal expertise in their varied statutory mandates. Investigation procedures for the identification and collection of evidence that affect a company’s risk vary widely by agency, as do each agency’s approach to press, community, and employee relations, and even cooperation with other agencies. For example, CSB has refused to conduct joint interviews or document collection with OSHA and other agencies, requiring companies to develop strategies to minimize multiple, duplicative and potentially conflicting investigation efforts.

Company counsel, with a duty to cooperate with all agencies (and insurance investigators), seek to conduct their own privileged investigation with experts. This may have to be done while facing rapid-fire document and interview demands from multiple agencies. Complying with agency demands, the duty to preserve electronic data, communications, paper documents and physical evidence, and providing notice to third parties potentially at fault can demand a massive effort and require a proven methodology.

The speed of crisis investigations and decisionmaking, and the massive legal risks they pose, including possible criminal prosecution and “bet the company” financial risks, mean that a seasoned crisis team should be prepared to respond 24/7 on multiple tracks. Otherwise, despite the President’s Executive Order, multiple agencies will compete to chart the course of an investigation and determine the outcome, without prioritizing or protecting the interests of the company and its employees.

An employer could be held liable for its employee’s off-duty accident as long as the proximate cause of the injury (here, alcohol consumption) occurred within the scope of employment, the California Court of Appeal has held, reversing summary judgment in favor of the employer. The Court further ruled it was irrelevant that the effect of the employee’s negligence occurred after he had arrived home from the employer-sponsored party.  The full article can be accessed here.

If there’s one sound that perks the ears of safety officers at any medical facility, it’s a knock at the door from an OSHA inspector.

OSHA inspections can seem like a nerve-wrecking and stressful ordeal, particularly for smaller facilities, but with the right preparation, the inspection process can be relatively painless. This preparation revolves around having the appropriate documentation to provide the OSHA inspector, familiarizing yourself with every step of the inspection, and knowing how the current standards relate to the risks in your facility so that you can properly address any potential citations.

This excellent article, which appeared in HC Pro’s Medical Environment Update, is linked here, with permission, from HC Pro, Inc.