In one of the most significant rulemaking efforts in over a decade, OSHA has finalized a rule revising its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The rule will affect over 5 million business establishments across the country. Over 40 million employees will need to be retrained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be over $200 million for employers. Annualized net monetized benefits are estimated to be approximately $550 million.

Click here for an article analyzing the new requirements.

OSHA has announced a National Emphasis Program (NEP) to encourage compliance with safety and health standards at nursing and residential care facilities through programmed inspections.  The NEP, which directs OSHA compliance officers to focus inspections on ergonomic stressors associated with lifting patients; slips, trips, and falls; bloodborne pathogens; exposure to tuberculosis; and workplace violence, took effect on April 5, 2012 and is scheduled to remain in place for three years.  The attached Special Report summarizes the key aspects of the NEP and provides guidance to help ensure compliance with the OSHA standards identified as target areas. 

In a recent memorandum to Regional Administrators and Whistleblower Program Managers, Richard Fairfax, the Deputy Assistant Secretary for OSHA, has provided "guidance to both field compliance officers and whistleblower investigative staff on several employer practices that can discourage employee reports of injuries and violate section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act), or other whistleblower statutes."  Section 11(c) prohibits an employer from discriminating against an employee for exercising any right afforded by the Act.

The memorandum states definitively that "reporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination under section 11(c)."  It also lists the "most common" potentially discriminatory policies:

  • Taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury.  "[A]n employer’s policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury."
  • Taking disciplinary action against employees who report an injury or illness and the stated reason is that the employees have violated an employer rule about the time or manner for reporting injuries and illnesses.  "OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries.  To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee’s right and ability to report."
  • Taking disciplinary action against employees who are injured on the job because they violated a safety rule, when the rule violation is simply a pretext for discimination.
  • Establishing incentive programs that may discourage reporting of injuries.  "For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time."

The issue of programs and policies that may impact injury and illness reporting has been a topic of debate since OSHA issued its Recordkeeping National Emphasis Program (NEP), which instructed compliance officers to investigate certain safety incentive programs as part of the NEP inspections.  Employers should take note of this new guidance from OSHA and make any needed adjustments to their policies.

  

OSHA has published its long awaited update to its Hazard Communication standard to align the standard with the Globally Harmonized System of Classification and Labeling of Chemicals.  Click here to go to OSHA’s webpage on the topic, which includes links to the final rule and other guidance material.

We will be providing additional information on the rule and employer compliance obligations in the coming days.

Many businesses across the country have implemented on-site occupational health clinics to address occupational injuries and illnesses, as well as address common employee health needs.  While on-site occupational health clinics can provide many benefits for employers and their employees, they also can present significant compliance challenges for companies in the areas of employee benefits, privacy, leave management, and, of course, workplace safety and health.

Attached is a SPECIAL REPORT prepared by Jackson Lewis that discusses the key issues employers should consider when bringing health care "in-house."  Employers who run their own occupational health clinics, or who are considering instituting such clinics, are strongly encouraged to review this SPECIAL REPORT.        

In a February 16, 2012 letter to Congresswoman Kristi Noem, OSHA Assistant Secretary David Michaels has provided additional guidance to employers in the grain handling industry regarding the use of sweep augers to remove grain from bins.  Sweep augers are common tools used in grain bins to push grain remaining at the bottom of a bin into a discharge sump opening.  Typically, sweep augers are electrically powered and rotate in a circular direction around the bottom of the bin at an extremely slow speed.  The letter from Assistant Secretary Michaels responds to an inquiry from Congresswoman Noem asking for clarification of earlier Agency pronouncements prohibiting employees from ever entering a grain bin while a bin sweep auger is operating. 

In the February 16 letter, OSHA does not back off of its earlier position.  However, the Agency does state that "if an employer can demonstrate that a worker in a grain storage structure is not exposed to hazards presented by the equipment, the standard does not require the equipment to be deenergized before a worker enters the bin."  This statement may signal that the Agency is moving from a position of a categorical prohibition on employee entry while sweep augers are operating to one which could allow entry so long as certain steps are taken to avoid exposure to any hazard.  How such a policy would work in practice and what steps would be permissible is an open question that OSHA does not address in its response to Congresswoman Noem. 

The importance of this issue to the grain handling industry cannot be overstated.   Sweep augers are ubiquitous in the industry.  All grain handling employers should take note of this recent OSHA letter and make any required changes to their operations.         

On March 1, 2012, OSHA announced a change to its organizational structure related to its Whistleblower Protection Program (WPP).  The WPP will now report directly to the Assistant Secretary of OSHA, currently Dr. David Michaels, instead of the Director of the Directorate of Enforcement Programs.

The WPP is in charge of investigating workplace retaliation complaints made by employees under a variety of statutes, including the Occupational Safety and Health Act of 1970.  The reorganization is just the latest in a series of steps taken by the Department of Labor to strengthen the WPP.  The move is described by the Department as representing a "significantly elevated priority status" for whistleblower enforcement.

For more information regarding the reorganization, click here.

Just weeks after announcing that it would be initiating the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for its IIPP rule, the Agency recently announced that there would be an additional delay in starting the process.  IIPP has the potential to be the most significant OSHA rulemaking in over a decade, potentially requiring all employers to implement a safety and health program at their worksites.  The Agency cited delays in preparation of the SBREFA package for the hold-up in starting the process.  OSHA gave no indication in its notification of when the process will be initiated, so stakeholders should "stay tuned" and monitor OSHA’s website for developments.

While IIPP is delayed, OSHA’s final rule updating its Hazard Communication standard to align with the Globally Harmonized System of Hazard Communication may be on the verge of publication.  The final rule was just recently cleared by the Office of Management and Budget, the final regulatory step before publication in the Federal Register.  OSHA could publish the final rule within the next month.

The rule could affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees may need to be re-trained. In the proposed rule, OSHA estimated the annualized compliance costs will be almost $100 million for employers. Annualized benefits were estimated to be approximately $850 million.  Attached is a Special Report on the proposed rule that summarizes its key provisions.  While the final rule will differ from the proposed rule, the Special Report provides background information on the Agency’s approach to the rulemaking generally.

We will continue to keep stakeholders apprised of developments with these rulemakings.       

OSHA is poised to release to the public its initial regulatory approach to its Injury and Illness Prevention Program (IIPP) rule. OSHA has announced that it will begin the Small Business Regulatory Enforcement and Fairness Act (SBREFA) process for its IIPP rule, at which time the Agency will likely make public a draft regulatory text and some preliminary analyses of the costs and benefits of the rule.

The Agency’s oft-stated most significant regulatory priority has been under development in the Agency for over two years. Even so, most stakeholders have no idea what a federal IIPP rule will look like. Will it look like California’s IIPP rule? Or will it take some other approach to requiring employers to establish safety and health management systems in the workplace?

Most safety and health management systems have some form of the following elements, implemented to proactively address hazards in the workplace:

  • Management Leadership
  • Employee Participation
  • Hazard Identification and Prioritization
  • Hazard Control
  • Education and Training
  • Evaluation and Continuous Improvement

OSHA’s draft proposed rule will likely integrate some form of these elements. Of course, the real challenge for OSHA is to take these broad concepts and turn them into mandatory requirements, which can be broadly applied to employers in all industries and of all sizes. OSHA must also attempt to craft a rule that does not disrupt existing employer programs that may be working. However OSHA deals with these issues, it is important for stakeholders to watch OSHA’s rulemaking closely and actively engage OSHA on what will work and not work with respect to a proposed IIPP rule.

Employers covered by OSHA’s recordkeeping rule must prepare and post the OSHA Form 300A, “Summary of Work-Related Injuries and Illnesses,” by February 1 and keep the form posted until April 30.  The form must be posted at each establishment covered, in a conspicuous place where notices to employees are customarily posted.

After the form is completed, but before posting, a company executive must certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.”

Under OSHA’s rule, a company executive can be one of the following:  (1) an owner of the company (only if the company is a sole proprietorship or partnership); (2) an officer of the corporation; (3) the highest ranking company official working at the establishment; or (4) the immediate supervisor of the highest ranking company official working at the establishment.

OSHA can cite an employer who fails to post the OSHA Form 300A as required.  Employers should take steps now to ensure they are fully compliant.