OSHA recently launched an initiative that focuses on protecting temporary employees from recognized workplace hazards.  Under this initiative, OSHA is directing all OSHA compliance officers to assess whether employers who use temporary workers are complying with their responsibilities under the Occupational Safety and Health Act of 1970.  For purposes of this initiative, temporary workers are defined as all employees supplied to a host employer and paid by a staffing agency. 

As part of their inspections, OSHA compliance officers will determine whether any employees are temporary workers and whether any of the identified temporary employees are exposed to a violative condition.  They also will assess, by records review and interviews, whether temporary workers received appropriate training in a language and vocabulary they can understand.  OSHA compliance officers will pay particular attention to whether temporary workers are trained in how to protect themselves from serious hazards, such as wearing appropriate protective equipment when working with hazardous chemicals and the lockout/tagout procedures and protections. 

OSHA compliance officers also will be required to document the name of the temporary workers’ staffing agency, the agency’s location, the supervisory structure of both the host employer and staffing agency, and the extent to which the temporary workers are being supervised on a day-to-day basis by either the host employer or the staffing agency.

 

As a cold winter finally comes to an end, many of us look forward to summertime warmth. But while sun and heat may make for a fun day at the beach, they  can spell  danger for workers who are exposed to soaring temperatures and a rising heat index. According to the Occupational Safety and Health Administration (“OSHA”), thousands of workers in the United States get sick from excessive heat exposure while working outdoors each year and more than 30 workers died in 2012 from heat-related illnesses.

Although OSHA  has no heat illness prevention standard, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (“OSH Act”), known as the General Duty Clause, requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.  That includes protecting them from heat stroke and other serious heat-related illness.   Of the “State-plan” states running their own  safety programs under agreements with OSHA,   only California and Washington currently have  heat-related illness prevention standards.  However, other State-plan states also have general duty clauses in their statutes which may be invoked to address these issues.

Continue Reading The Heat is On: What Employers Can Do to Protect Employees from Heat-Related Illness

Representative George Miller (D-CA) recently reintroduced a bill (H.R. 1649) that would provide whistleblower protections to certain workers in the offshore oil and gas industry.  The bill was first introduced in 2010 and again in 2011. 

Continue Reading Offshore Oil and Gas Worker Whistleblower Protection Act of 2013 Introduced Into the House

The Occupational Safety and Health Administration (“OSHA”) released a new interpretation letter on April 5, 2013, clarifying that non-union employees may select a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections of their employer’s worksite.  In reaching this conclusion, OSHA concluded that language in Section 8(e), 29 U.S.C. § 657(e), of the Occupational Safety and Health Act (“OSH Act”) authorizes participation in the walk-around portion of an OSHA inspection by a person affiliated with a union without a collective bargaining agreement or with a community representative so long as the individual has been authorized by the employees to serve as their representative.  

However, OSHA recognized that pursuant to 29 C.F.R. § 1903.8, the OSHA compliance officer may exercise his or her discretion in who can participate in workplace inspections in order to manage the inspection effectively.  While OSHA recognized that its regulations acknowledge that most employee representatives will be employees of the employer, it concluded that there may be times when the presence of an employee representative who is not employed by the employer will be allowed to participate in a workplace inspection.  Specifically, the regulations allow an OSHA compliance officer, for “good cause,” to be accompanied by a third-party who is not an employee, such as “an industrial hygienist or a safety engineer” when, in the judgment of the OSHA compliance officer, such a representative is “reasonably necessary to the conduct of an effective and thorough physical inspection.”  29 C.F.R. § 1903.8(c).  In OSHA’s view, representatives are “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection.  OSHA noted that a non-employee representative may make a positive contribution to an inspection if, for example, he or she has experience and skill in evaluating similar working condition, or when he or she is fluent in the language of non-English speaking workers and would facilitate useful interactions between the compliance officer and the workers.

Citing confusion, OSHA withdrew an earlier 2003 interpretation letter that rejected the right of a non-employee who files an OSHA complaint to participate in the resulting OSHA inspection.  OSHA noted that the 2003 interpretation letter was distinguishable because it did not address the right of workers to designate a representative of their choice.

OSHA’s Region III is targeting noise exposure in the workplace, as part of a Regional Emphasis Program.  Federal OSHA states located in Region III include Delaware, the District of Columbia, and Pennsylvania.  According to OSHA, noise “induced hearing loss is one of the most common occupational diseases and the second most self-reported occupational illness or injury.”

Under the Emphasis Program, OSHA will be conducting inspections in the following industries, selected for inclusion based upon agency data showing frequent citations in these industries for OSHA’s occupational noise standard:

3089/Plastics Products, Not Elsewhere Classified
3281/Cut Stone and Stone Products
2448/Wood Pallets and Skids
2421/Sawmills and Planing Mills, General
3441/Fabricated Structural Metal
5093/Scrap and Waste Materials
3499/Fabricated Metal Products, Not Elsewhere Classified
2499/Wood Products, Not Elsewhere Classified
3599/Industrial and Commercial Machinery and Equipment, Not Elsewhere Classified
3599/Industrial and Commercial Machinery and Equipment, Not Elsewhere Classified
3544/Special Dies and Tools, Die Sets, Jigs and Fixtures and Industrial Molds
2051/Bread and Other Bakery Products, Except Cooking and Crackers
2525/Mattresses, Foundations, and Convertible Beds
3462/Iron and Steel Forgings
5051/Metals Service Centers and Offices
3271/Concrete Block and Brick
3442/Metal Doors, Sash, Frames, Molding and Trim Manufacturing
3443/Fabricated Plate Work (Boiler Shops)
3312/Steel Works, Blast Furnaces (Including Coke Ovens) and Rolling Mills
2099/Food Preparations, Not Elsewhere Classified

The inspections will comprehensively analyze noise exposures in the workplace and the measures employers are taking to address the hazard.  Compliance officers are directed to sample for noise and evaluate engineering and administrative controls used at the worksite.  Employers’ hearing conservation programs will also be reviewed.

Employers in Region III should take time now to review their facilities for compliance with OSHA’s noise standard, along with their hearing conservation programs, and be prepared for these Emphasis Program inspections.
 

The Department of Health and Human Services (“HHS”) issued a proposed rule on respirator certification fees on March 27, 2013.  HHS proposed increasing the fees for respirator certifications issued by the National Institute for Occupational Safety and Health (“NIOSH”), and proposed creating a mechanism for routinely updating the fees in the future.  The proposed fee structure is designed to enable NIOSH to fully recover its costs in certifying, testing and inspecting respirators. The current fees have remained unchanged since 1972.
 

The Occupational Safety and Health Administration (“OSHA”) and the Mine Safety and Health Administration (“MSHA”) require employers to supply NIOSH-certified respirators to their employees whenever the use of respirators is required.  A NIOSH certificate of approval allows a respirator manufacturer the ability to sell its NIOSH-approved respirators to businesses or industries that require the use of respirators by their employees. 

Continue Reading Department of Health and Human Services Proposes to Increase Respirator Certification Fees

Senator Patty Murray (D-WA) recently reintroduced a bill that would amend the Occupational Safety and Health Act of 1970. The proposed Protecting America’s Workers Act (“PAWA”) (S. 665) would expand coverage to more workers, increase whistleblower protections, significantly enhance the civil and criminal penalties issued against employers for violations, and would provide rights to victims and their family members during the investigation process.

Specifically, the proposed bill would expand OSH Act protections to include state, county, municipal and U.S. government employees. It would also expand protections to flight attendants and other private sector employees. In addition, the current version of PAWA would require a minimum penalty of $50,000 for a worker’s death caused by a willful violation, and would make felony charges available for an employer’s repeated and willful violations of the OSH Act that results in a worker’s death or serious injury.

The proposed bill would also update the OSH Act’s whistleblower protection provisions by incorporating administrative procedures adopted in similar whistleblower statutes, such as the Surface Transportation Act. The most significant changes would be increasing the statute of limitations period from 30 days to 180 days for filing a complaint with the U.S. Department of Labor and providing a private right of action to all complainants. It would further mandate that the DOL investigate all death or serious injury cases and would require that employers inform workers of their rights under the OSH Act. The bill would also give workers and their families a right to meet with DOL investigators.

Moreover, the proposed bill includes new provisions addressing multiemployer worksites. For example, the proposed bill would amend the general duty clause to expand protections to all workers on the worksite (and not just the employer’s employees), and would require DOL to issue regulations requiring a site-controlling employer to track all recordable injuries and illnesses, including those occurring among contractors and subcontractors. Further, the bill would clarify the employer’s responsibility to provide necessary safety equipment and personal protective equipment to their workers.

The proposed bill was referred to the Subcommittee on Health, Education, Labor, and Pension (“HELP”) on March 22, 2013. HELP will consider it before possibly sending it on to the House or Senate as a whole for a vote.

Employers are well aware that just one work-related accident or illness can result in medical expenses, rehabilitation services, and liability compensation. A recent Nebraska Supreme Court decision is a reminder that undocumented aliens, as well as legal workers, may bring workers’ compensation claims. In Moyera v. Quality Pork Int’l, 284 Neb. 963 (Jan. 4, 2013), the Nebraska Supreme Court held that the Nebraska Workers’ Compensation Act applies to undocumented aliens and these employees could be entitled to permanent total disability benefits (“PTD benefits”) for work-related injuries. Courts in other states also have found that undocumented employees are covered by their state workers’ compensation systems, including: (1) Florida, (2) Kansas, (3) Kentucky, (4) Maryland, (5) New Jersey, (6) North Carolina, (7) Ohio, (8) Oklahoma, and (9) Pennsylvania. Such liability can be avoided by carefully managing the hiring process to ensure that you do not employ aliens who are not authorized to work.  Additional details can be found here.

Employers may seek additional information regarding an employee’s religious beliefs where the employee seeks to be excused from participating in a mandatory influenza vaccination program for religious reasons, according to the Equal Employment Opportunity Commission’s Office of Legal Counsel. The opinion came in an informal discussion letter in which the Office responded to an inquiry regarding religious accommodations under Title VII of the Civil Rights Act of 1964 in the context of mandatory vaccination programs. The letter highlights the limitations of such an inquiry and is subject to the EEOC’s caution that the letter provides only “an informal discussion of the noted issue and [did] not constitute an official opinion of the Commission.”  Additional information can be found here.

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