As the winter storm season approaches, the Occupational Safety and Health Administration has focused on protecting workers from hazards during winter storm response and recovery operations. OSHA’s new webpage, entitled “Winter Storms,” provides employers with information on preparing for winter storms and identifying and controlling hazards associated with winter storm conditions.

A number of hazards associated with winter storms are addressed:  being struck by falling objects such as icicles, tree limbs, and utility poles; driving accidents due to slippery roadways; carbon monoxide poisoning; dehydration, hypothermia and frostbite; exhaustion from strenuous activity; back injuries or heart attack while removing snow; slips and falls due to slippery walkways; electrocution from downed power lines and downed objects in contact with power lines; burns from fires caused by energized line contact or equipment failure; falls from snow removal on roofs or while working in aerial lifts or on ladders; roof collapse under weight of snow (or melting snow if drains are clogged); and lacerations or amputations from unguarded or improperly operated chain saws and power tools, and improperly attempting to clear jams in snow blowers.

OSHA recommends steps for avoiding or controlling these identified hazards. It also provides links to the Federal Emergency Management Agency, the American Red Cross, the National Weather Service, the National Oceanic and Atmospheric Administration, the Centers for Disease Control and Prevention, and the National Safety Council for additional information.

Employers should review the information provided by OSHA to ensure that they are aware of potential hazards that may affect their employees.

Following its recent interpretation that "therapeutic exercise" constitutes medical treatment for OSHA recordability purposes, OSHA has now stated that an exercise regime recommended by a Certified Athletic Trainer for an employee who exhibits any signs or symptoms of a work-related injury involves medical treatment and is a recordable case.  OSHA made this interpretation in a letter recently posted on its website.

In the same letter, OSHA also provided guidance on whether specific types of exercise constitutes medical treatment.  OSHA states that if a Certified Athletic Trainer "utilizes stretching" to relieve symptoms of a work-related injury or illness, the "stretching" constitutes medical treatment.  OSHA also states that a written home exercise program provided by a Certified Athletic Trainer for signs or symptoms of a work-related injury or illness constitutes medical treatment for recordkeeping purposes.

OSHA’s interpretation is particularly important for musculoskeletal disorders (MSDs), as MSDs are often managed, in part, through exercise regimes.  OSHA does note in the letter that exercise given as a purely precautionary measure (i.e., before the onsite of signs or symptoms) would not qualify for recordability.  However, if an employee experiences any signs or symptoms of a work-related injury or illness — even very early signs or symptoms — exercise given to manage those signs or symptoms would constitute medical treatment for recordability purposes.

Employers should take note of this new interpretation and adjust their recordkeeping practices accordingly.     

During a particularly busy September, OSHA issued three new enforcement directives that employers should review:

Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents.  On September 8, 2011, OSHA issued its first ever directive instructing compliance officers on how to conduct inspections that occur as a result of workplace violence incidents.  The directive "clarifies and expands" OSHA policies in the area of workplace violence.  While OSHA has no specific standard addressing workplace violence, the Agency has stated that workplace violence is a recognized hazard and that it will utilize the General Duty Clause of the Occupational Safety and Health Act of 1970 to cite employers who do not take reasonable and appropriate steps to protect employees against workplace violence hazards.

Site-Specific Targeting 2011.  On September 9, 2011, OSHA issued its Site-Specific Targeting program (SST) for the coming year.  The SST is OSHA’s "main programmed inspection plan for non-construction workplaces that have 20 or more employees."  Establishments are placed on OSHA’s SST inspection list based upon information submitted to the Agency through its 2010 Data Initiative.  

Whistleblower Investigations Manual.  On September 20, 2011, OSHA published its revised Whistleblower Investigations Manual, superseding the 2003 version.  The Manual provides step-by-step instructions to OSHA investigators on how to conduct investigations under the numerous whistleblower statutes that OSHA enforces.  The revised Manual is part of a larger effort announced recently by OSHA to revamp its whistleblower protection program.

OSHA enforcement directives provide useful information regarding the conduct of inspections and, in some cases, underlying compliance obligations.  Employers are encouraged to take note of these new directives and make any needed adjustments to their safety and health policies as a result of their review.

       

As sports fans begin their annual football watching, rivalry matches, and tailgating, most forget that sporting teams are often “employers” or associated with an “employer.” Like other employers, Colleges and Universities, School Districts, and Professional Sports Teams must comply with Occupational Safety and Health Act (“OSHA”) standards.

These employer obligations recently were spotlighted in a fatal accident of a student/employee filming a football practice using a scissor lift at the University of Notre Dame. The University was cited for violations of Indiana OSHA (IOSHA) safety and health standards. As part of its settlement with IOSHA, the University agreed to pay a $42,000 fine in June and has launched a website publicizing the hazards of aerial lifts.

In response to the accident at Notre Dame, on July 6, 2011, OSHA issued a hazard alert about the dangers of using scissor lifts to film events and functions. OSHA notes several hazards associated with scissor lifts, including using the lifts in inclement weather, electrocution when working near power lines, and positioning lifts on soft or uneven ground.

While OSHA may not come to mind as a governing body associated with the regulation of sports, as shown above, many OSHA standards are directly relevant to sporting organizations and their employees’ safety. In fact, sports organizations may be in violation of OSHA standards with regard to the equipment used in filming practice, maintenance of fields, and the operation of machinery ancillary to the sporting activities themselves.

As the fall sports season begins, all employers, including those associated with sports, must remember that OSHA standards are applicable to their organizations and they should stay cognizant of the rules that apply to their activities on and off the field. Make this season safe and accident free.

In a case of first impression, the Occupational Safety and Health Review Commission has established a three-part test for employers claiming third-party safety and health audits protected from disclosure by the attorney-client privilege. Applying underlying legal principles of privilege to the technical area of safety and health assessments, the Commission has set forth steps that all employers need to consider taking before conducting any safety and health audits of their operations. The case, Secretary of Labor v. Delek Refining, Ltd., OSHRC No. 09-0844, was decided on July 11, 2011.

Process Safety Management Audit Report

In Delek, the company had contracted with a third party, the Process Safety and Reliability Group, Inc. (PSRG), to conduct an audit of its process safety management (PSM) program and, in the company’s view, to assist counsel to the company in assessing technical issues associated with compliance with the PSM standard. After an investigation by OSHA into an explosion and fire at a Delek facility, OSHA issued citations against the company and litigation ensued. During discovery, the Secretary of Labor issued a subpoena to PSRG requesting a copy of the audit report. Delek moved to quash the subpoena, claiming that the report was protected by the attorney-client privilege. The Administrative Law Judge (ALJ) denied Delek’s motion to quash, and the company sought review of the denial with the Commission.

Three-Part Test

The Commission articulated three prerequisites that must be met for the privilege to attach to third-party reports:

  1. The company must have provided information to the third party, rather than the third party providing its own information. “Thus, the privilege will not apply where the attorney consults the third party to obtain information the client did not have . . . or employs the third party to gather data through studies and observations of the physical conditions at a client’s site, rather than through client confidences."
  2. The company must have sought legal advice as opposed to some other kind of advice.
  3. In order to provide legal advice, the attorneys needed the services of the third party to translate technical or complex information.

The Commission did not rule on whether the report at issue in Delek met this test, it instead remanded that question to the ALJ “to review the report in camera and reconsider, in accordance with the principles discussed …, the extent to which the attorney-client privilege may be applicable.”

The test articulated leaves many open questions for employers, particularly regarding what constitutes “legal advice” in the course of a safety and health audit. In addition, because the case dealt only with attorney-client privilege, the Commission did not address whether any other privileges could have applied to the report, such as the work product doctrine that protects from disclosure documents that “are prepared in anticipation of litigation or for trial.” Notwithstanding this, Delek provides a framework for employers to consider when deciding whether, and how, to perform safety and health audits of their facilities. 

Facing charges of ineffectiveness and an overall failure to protect Nevada workers, Nevada OSHA, has come under fire recently from both the media and the federal government. In response, Nevada OSHA has effected changes to its investigative practices that could spell trouble for unwary and unprepared employers.

As reported in the Las Vegas Review Journal earlier this summer, Nevada OSHA recently instructed its team of more than 40 investigators to find serious, willful, or repeat violations in at least half of their safety inspections. New OSHA Rule Ruffles Feathers, Las Vegas Review Journal, July 2, 2011.  Until now, the average rate for such citations ran at around 22 percent.  This means that investigators will be on the lookout for as many serious, repeat, and willful violations as they can, even if it means citing a violation as “serious” that in the past might have drawn a lesser classification.

New rules also allow Nevada OSHA to look back five years (as opposed to two years under the previous rules) to determine if a safety violation is a “repeat” of something for which the employer was cited before. This follows a similar change in federal OSHA enforcement policy.

Nevada employers in certain targeted industries also should be aware of federal OSHA’s National Emphasis Programs (“NEPs”), one of which focuses on compliance with OSHA’s recordkeeping requirements. State agencies can adopt and enforce these programs in state OSHA plan states, such as Nevada.

A business targeted for a document review will not know it is on the list until a compliance officer appears at the door. The compliance officer will conduct a safety inspection of the facility, and then will present a laundry list of records for review. Records subject to review in an NEP inspection typically include employee attendance sheets, workers compensation reports, disciplinary records, incident reports, safety committee meeting minutes, accident investigation records, and FMLA records, among others. If the employer has a third-party medical and/or workers compensation provider, the investigator likely will seek to obtain records from them as well. As part of the NEP investigation, the compliance officer will also identify management and non-management employees for interviews.  Not all industries are covered by this NEP.

Those who have undergone recordkeeping inspections under the NEP report that inspectors often will be in and out of a facility for hours and days at a time and for weeks on end, depending on the size of the business and the ready availability of records.  As with safety inspections, recordkeeping inspections can, and often do, wind up with the agency issuing citations and proposed penalties.

Now is the time for employers to review their safety policies and procedures, and to make sure that all required safety devices, personal protective equipment, other measures, and records are in place.  Of key importance:  review citations received within the past five years and conduct a safety assessment targeting the cited items to help identify and eliminate possible repeat violations.  Make your workplace safety-compliant before OSHA arrives.