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.

In response to external and internal reviews of the operation and effectiveness of OSHA’s Whistleblower Protecton Program, OSHA has announced significant changes in how the Agency runs the program.  OSHA enforces the whistleblower provisions of 21 different statutes, including Section 11(c) of the OSH Act and other workplace and environmental safety and health laws.

The significant changes announced by OSHA include:

  • Reorganizing the Agency so that the Whistleblower Protection Program reports directly to the Assistant Secretary of OSHA;
  • Adding 25 new investigators; and
  • Revising the Whistleblower Investigations Manual to "provide further guidance on the enforcement program to help ensure consistency and quality of investigations."

Employers should continue to monitor OSHA’s actions in this area carefully and, in particular, review the updated Investigations Manual once it is released.  

In a newly released letter of interpretation, OSHA has concluded that "therapeutic exercise" recommended by a health care professional in response to minor work-related "pain" constitutes medical treatment under OSHA’s recordkeeping rule.

OSHA was asked whether exercises recommended for a short period of time by an on-site health care professional when an employee is experiencing minor pain would qualify as medical treatment and be recordable, assuming the pain was work-related.  OSHA’s response was a definitive "yes."  "Therapeutic exercise" is not included on the list of first aid treatments.  Furthermore, the duration of the exercises makes no difference in an employer’s recordability determination:

The fact that physical therapy treatment, including exercise, is normally provided over an extended period of time and is administered by licensed personnel with advanced training was taken into account during the rulemaking process to determine the composition of the first aid list.  However, in implementation of the final requirements, the number of treatments rendered is not a factor in distinguishing between medical treatment and first aid.

OSHA also stated that this situation would not qualify for the exception from recordability for "minor musculoskeletal discomfort" (where the employer assigns a work restriction for the purpose of preventing a more serious condition from developing).  OSHA emphasized that this exception is "very narrow in scope" and that once any type of medical treatment is offered — including therapeutic exercise — the case is recordable.  "Work-related minor musculoskeletal discomfort treated with therapeutic exercise constitutes a recordable case."

Employers should take note of this new letter and ensure that their recordkeeping practices are aligned with OSHA’s interpretation.

   

 

Click here to read this recent Jackson Lewis article on a new Connecticut law requiring health care employers to develop and implement plans, policies, and training programs to prevent and respond to workplace violence incidents.  Putting aside the issue of whether such a law is preempted by the Occupational Safety and Health Act of 1970, health care employers in Connecticut should review the new law carefully and start analyzing to what extent they need to make changes to their existing workplace violence policies. 

OSHA’s Spring 2011 Regulatory Agenda reiterates OSHA’s earlier commitment to initiate the Small Business Regulatory Enforcement Fairness Act process for its Injury and Illness Prevention Program (IIPP) rule in June of this year.  Now midway through July, it is unclear when OSHA will release to the public its initial regulatory approach to the IIPP rule.  The Agency’s oft-stated most significant regulatory priority has been under development in the Agency for over two years and, yet, 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 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
  • Risk Identification and Prioritization
  • Hazard Control
  • Education and Training
  • Evaluation and Continuous Improvement

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 — and whenever — 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.   

OSHA has proposed changing the industries that would be generally exempt from maintaining regular workplace injury and illness records. Employers in exempt industries are not required to maintain OSHA 300 Logs, complete OSHA 301 incident report forms, or complete the OSHA 300A annual summary forms.

OSHA’s proposed rule also would require employers to report workplace amputations to the Agency within 24 hours, as well as all in-patient hospitalizations within 8 hours. Existing recordkeeping rule (Part 1904) requires employers to report in-patient hospitalizations of 3 or more employees to OSHA within 8 hours. Any workplace fatality would continue to be reportable, as well.

Partially Exempt Industries

OSHA’s recordkeeping rule excludes certain employers in relatively low hazard industries from the Agency’s basic recordkeeping requirements. The current exemption list is industry-specific and based on the now-outdated 1987 Standard Industrial Classification (SIC) coding system. OSHA’s proposed rule will re-categorize the exempt industries based on the North American Industrial Classification System (NAICS), which is the system used by federal agencies for statistical research purposes. The proposal also will remove some industries from the list based on new injury and illness data compiled by the Bureau of Labor Statistics.

The proposed change is significant. Some employers who have for years been regularly exempt from maintaining OSHA 300 Logs will now be required to keep them. Recordkeepers will need to be trained on identifying a work-related injury and illness and recording properly such injuries and illnesses that meet OSHA’s severity criteria. Conversely, some employers that have been required to keep records will now be exempt from this obligation. 

Employers should check the following lists to determine where they fit within OSHA’s proposed rule:

Industries that Include Establishments to be Newly Required to Keep Records

3118       Bakeries and Tortilla Manufacturing

4411       Automobile Dealers

4413       Automotive Parts, Accessories, and Tire Stores

4441       Building Material and Supplies Dealers

4452       Specialty Food Stores

4453       Beer, Wine, and Liquor Stores

4539       Other Miscellaneous Store Retailers

4543       Direct Selling Establishments

5313       Activities Related to Real Estate

5322       Consumer Goods Rental

5324       Commercial and Industrial Machinery and Equipment Rental and Leasing

5419       Other Professional, Scientific, and Technical Services

5612       Facilities Support Services

5617       Services to Buildings and Dwellings

5619       Other Support Services

6219       Other Ambulatory Health Care Services

6241       Individual and Family Services

6242       Community Food and Housing, and Emergency and Other Relief Services

7111       Performing Arts Companies

7113       Promoters of Performing Arts, Sports, and Similar Events

7121       Museums, Historical Sites, and Similar Institutions

7139       Other Amusement and Recreation Industries

7223       Special Food Services

8129       Other Personal Services

Industries that Include Establishments to be Newly Partially Exempt from Keeping Records

4412       Other Motor Vehicle Dealers

4431       Electronics and Appliance Stores

4461       Health and Personal Care Stores

4471       Gasoline Stations

4511       Sporting Goods, Hobby, and Musical Instrument Stores

4532       Office Supplies, Stationery, and Gift Stores

4812       Nonscheduled Air Transportation

4861       Pipeline Transportation of Crude Oil

4862       Pipeline Transportation of Natural Gas

4869       Other Pipeline Transportation

4879       Scenic and Sightseeing Transportation, Other

4885       Freight Transportation Arrangement

5111       Newspaper, Periodical, Book, and Directory Publishers

5122       Sound Recording Industries

5151       Radio and Television Broadcasting

5172       Wireless Telecommunications Carriers (except Satellite)

5173       Telecommunications Resellers

5179       Other Telecommunications

5181       Internet Service Providers and Web Search Portals

5191       Other Information Services

5221       Depository Credit Intermediation

5239       Other Financial Investment Activities

5241       Insurance Carriers

5259       Other Investment Pools and Funds

5413       Architectural, Engineering, and Related Services

5416       Management, Scientific, and Technical Consulting Services

5418       Advertising and Related Services

5511       Management of Companies and Enterprises

5614       Business Support Services

5615       Travel Arrangement and Reservation Services

5616       Investigation and Security Services

6116       Other Schools and Instruction

7213       Rooming and Boarding Houses

8112       Electronic and Precision Equipment Repair and Maintenance

8114       Personal and Household Goods Repair and Maintenance

8122       Death Care Services

8134       Civic and Social Organizations

8139       Business, Professional, Labor, Political, and Similar Organizations

Reporting In-Patient Hospitalizations and Amputations

Under OSHA’s existing recordkeeping rule, employers must report to OSHA within 8 hours all work-related fatalities and in-patient hospitalizations of 3 or more employees. OSHA’s proposal would broaden this reporting requirement to include work-related amputations and any work-related in-patient hospitalization of an employee. The former would be required to be reported within 24 hours of the occurrence of the incident and the latter would need to be reported within 8 hours. 

With this proposal, OSHA is following the actions of many states that have adopted more stringent reporting requirements for amputations and in-patient hospitalizations. 

Employers have until September 20, 2011, to file written comments on the proposal and are encouraged to participate in the rulemaking process.

OSHA has announced that it will give employers in residential construction an additional three months to come into compliance with its new fall protection directive.  OSHA published the new directive on December 16, 2010 and originally gave employers until June 16, 2011 to ensure their fall protection practices were compliant.  The three month extension, according to OSHA Assistant Secretary Michaels, will give employers "the additional time and flexibility they need to alter their work practices in accordance with the requirements of the new directive."

The crux of the new directive is OSHA’s revised position regarding the use of alternative fall protection measures when conventional fall protection in residential construction is deemed to be infeasible or would create a greater hazard.  Until the new directive was issued, employers in residential construction could utilize certain specified alternative procedures instead of conventional fall protection, without a prior showing of infeasibility or greater hazard and without developing a written, site-specific fall protection plan.  The latter requirements are generally mandated by OSHA’s construction fall protection standard at 29 CFR 1926.501(b).

The new directive, however, changes this previous enforcement position, requiring residential construction employers to demonstrate that conventional fall protection on a particular job is infeasible or presents a greater hazard before utilizing alternative fall protection measures.  Furthermore, residential construction employers must develop a written, site-specific fall protection plan when utilizing these alternative methods.  According to the directive, "[a] written plan developed for repetitive use for a particular style/model home will be considered site-specific with respect to a particular site only if it fully addresses all issues related to fall protection at that site."

Notwithstanding the three month extension, residential construction employers should be actively examining their fall protection strategies and methods to ensure they are compliant with the new directive.

OSHA has launched a survey of safety and health practices of private sector employers "as a tool toward better designing future rules, compliance assistance and outreach efforts."  OSHA is surveying as many as 19,000 employers nationwide of all sizes and in all industries.  Recipients of the survey can complete it either in hard copy form or electronically.

It is expected that the "Baseline Survey of Safety and Health Practices" will be used primarily to compile information about existing employers’ use of safety and health management systems, including who manages safety and whether annual evaluations are undertaken.  This, in turn, will be helpful to the Agency in pursuing its Injury and Illness Prevention Program (IIPP) rule.  It also may be used to support other OSHA rulemakings in the future.  OSHA has stated that the survey will not be used for enforcement and will be anonymous.