In moves designed to enhance the effectiveness of its enforcement activities, OSHA has unveiled a new “Severe Violator Enforcement Program” and a memorandum to Regional Administrators that has the effect of increasing penalties for employers receiving citations. These enhancements are further evidence of OSHA’s emphasis on enforcement and all employers must take note.

Severe Violator Enforcement Program

OSHA’s Severe Violator Enforcement Program (SVEP) “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of an SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the same employer of related worksites, increased “company awareness” of OSHA’s enforcement actions against the company, and enhanced settlement provisions including possible corporate-wide agreements.

The following types of cases are considered SVEP cases under the program:

  • A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
  • An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
  • An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
  • All egregious enforcement actions.

Administrative Enhancements to OSHA’s Penalty Policies

OSHA has also issued a memorandum to Regional Administrators that administratively enhances OSHA’s penalties. OSHA finds in the memorandum that currently “the Agency’s penalties are too low to have an adequate deterrent effect.” In effect, the memorandum revises OSHA’s penalty classification system, as currently outlined in its Field Operations Manual (FOM). Of particular note, OSHA is:

  • Expanding the time frame for considering an employer’s history of violations (when setting penalties) from three to five years.
  • Increasing penalties by 10 percent for employers that have been cited for any high gravity serious, willful, repeat, or failure-to-abate violations within the previous five years. 
  • Increasing the minimum proposed penalty for a serious violation to $500.
  • Calculating final penalties serially, unlike current practice where all of the penalty reductions are added and then the total percentage is multiplied by the gravity-based penalty to arrive at the proposed penalty.  (OSHA’s example in the memorandum results in an increase of approximately 50%.)

These changes to OSHA’s enforcement policies are significant.  Now more than ever, employers must take steps to evaluate their safety and health programs and proactively deal with safety and health issues at the workplace.

In a recently issued memorandum to Regional Administrators and State Plan Designees, OSHA has clarified its policy for citing the general industry personal protective equipment (PPE) standard, 29 CFR 1910.132(a), for failure to provide and use flame resistant clothing (FRC) in oil and gas well drilling, servicing, and production-related operations.  In the March 19 memorandum, OSHA provides guidance to its compliance officers (CSHOs) on when employers must provide and ensure the use of FRC and, thus, when citations under 29 CFR 1910.132(a) may be issued.

The memorandum sets the following specific citation guidance:

  • In drilling operations, FRC is usually not needed during initial rig up and normal drilling operations prior to reaching active hydrocarbon zones, unless other activities warrant their use.  Once active gas or hydrocarbon zones are reached, appropriate FRC must be worn by exposed employees working on the well site prior to drilling into identified gas or hydrocarbon zones.  FRC should also be worn when there is a history of fluid or gas kicks from underground producing zones.  And, once FRC is provided per these circumstances, employees should wear the FRC until the final casing is cemented and the well is effectively closed.
     
  • In well servicing operations, CSHOs are tasked with determining whether FRC is provided and worn during well servicing or workover operations, such as pulling wet string tubing, snubbing tubing, swabbing operations, etc.
     
  • In production-related operations, OSHA also concludes that the potential for flash fire exists, and advises CSHOs to specifically examine certain operations for citation, such as equipment openings, gauging, transfer of hydrocarbons, and maintenance operations on production equipment.

If citations are warranted, CSHOs are provided the following sample language to use:  "The employer failed to provide and ensure the use of flame-retardant treated clothing (FRC) necessary to protect employees from burns due to potential flash fires."

OSHA’s recent memorandum is important for employers in oil and gas well drilling, servicing, and production-related operations and they should thoroughly review it to ensure that their current practices are fully compliant with OSHA’s expectations. 

  

OSHA has embarked on a new National Emphasis Program (NEP) targeting hexavalent chromium in the workplace, along with other toxic substances found in conjunction with hexavalent chromium.  OSHA’s intent with the NEP is to "target workplaces with occupational exposures to hexavalent chromium" and certain other toxic substances (e.g., antimony, arsenic, cadmium, lead, iron oxide) to encourage compliance with applicable standards.  In 2006, OSHA issued updated standards regulating exposures to hexavalent chromium compounds in general industry, construction, and maritime.  The NEP was effective February 23, 2010.

Under the NEP, inspections will focus on industries where hexavalent chromium overexposures are known to occur, including:  electroplating; aircraft manufacturing; ship building and repair; inorganic dye and pigment manufacturing; iron and steel mills; ferrous foundries; chrome colors and other inorganic pigments.  Establishments with fewer than 10 workers will be included in the NEP.

OSHA’s Directorate of Evaluation and Analysis will prepare for each Area Office a master inspection list for the office to use in planning inspections.  Area Offices are given flexibility to schedule inspections within a specified inspection cycle, in order to make efficient use of resources.  The inspections will be conducted by an Industrial Hygiene Compliance Officer, trained in the hazards of hexavalent chromium.

At the opening conference, the compliance officer will verify that hexavalent chromium or other identified toxic substances are present in the workplace and if they are, the compliance officer will proceed with the inspection.  The compliance officer is instructed to consider and evaluate worker exposures and compliance in activities including, but not limited to:  regular operations; setup and preparation for regular operations; making adjustments during operations; cleaning of the process area; scheduled and unscheduled maintenance; implementation of engineering controls; use of PPE; medical surveillance programs; and worker training and education.  If there are any safety hazards noted, these may be referred for a safety inspection.

This NEP is another in a series of enforcement initiaitives that OSHA is undertaking.  Employers with operations with hexavalent chromium or the other toxic substances included in the NEP must review the NEP and prepare for an inspection.                

Indiana Governor Mitch Daniels has signed into law the “Possession of Firearms and Ammunition in Locked Vehicles Law.”  The law bars employers from adopting any rule or policy prohibiting employees, including contract employees, from storing firearms and ammunition out-of-sight in their locked vehicles.  Effective July 1, 2010, the law applies only to persons who may possess a firearm or ammunition legally.  It does not apply to the possession of a firearm, ammunition, or other device for which an individual must possess a valid federal firearms license issued under federal law (18 U.S.C. § 923).

In general, the gun law precludes employers in Indiana from adopting or enforcing any policy or rule that “prohibits, or has the effect of prohibiting, any employee, including a contract employee, from possessing a firearm or ammunition that is locked in the trunk of the employee’s vehicle, kept in the glove compartment of the employee’s locked vehicle, or stored out of plain sight in the employee’s locked vehicle.”

The law includes several broad exceptions, however.  Specifically, it permits employers to ban the possession of a firearm or ammunition on school property, property that is being used by a school for a school function, or on a school bus.  Employers also may prohibit employees from bringing firearms or ammunition on the property of:
 

  • a child caring institution;
  • an emergency shelter care child caring institution;
  • a private secure facility;
  • a group home;
  • an emergency shelter care group home;
  • a child care center;
  • a penal facility;
  • an approved post-secondary educational institution;
  • a domestic violence shelter;
  • a person’s residence; or
  • a location in violation of federal law.

Property that either is subject to the United States Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards (issued April 9, 2007), and licensed by the United States Nuclear Regulatory Commission (under Title 10 of the Code of Federal Regulations), or is owned by a public utility that generates and transmits electric power or a department of public utilities also is exempt from the gun law.  Finally, the law permits employers to ban the possession of a firearm or ammunition in an employee’s “personal vehicle” if the employee is a “direct support professional” who “works directly with individuals with developmental disabilities” and uses his personal vehicle to transport such individuals.

Employers in Indiana must take note of this new law and review their policies concerning the possession of firearms or ammunition on company property, including company-owned vehicles.  

We will continue to keep you apprised of developments in this area.

The Occupational Safety and Health Administration has released a list of about 15,000 workplaces with the highest numbers of injuries and illnesses in the nation for their industries, based on OSHA’s most recent survey. The agency stated that it has sent a letter to these workplaces, along with copies of their injury and illness data, and a list of the most frequently cited OSHA standards for their specific industry.

Dr. David Michaels, Assistant Secretary of Labor for OSHA, said in the March 9, 2010 announcement, “Receipt of this letter means that workers in that particular establishment are being injured at a higher rate than in most other businesses of its kind in the country.” He added, “Employers whose businesses have injury and illness rates this high need to take immediate steps to protect their employees.”

Mei Fung So prepared this post.

OSHA has just announced that it is extending by 15 days the public comment period for its proposal to add a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs).  Those wishing to comment on the proposed rule must now do so by March 30, 2010.  Four separate stakeholders had requested an extension of the comment period. 

Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

This is an important rulemaking and all stakeholders are encouraged to participate in the rulemaking process.

Employers may order employees to take seasonal and H1N1 vaccines, the nation’s principal workplace safety and health agency has stated.  OSHA offered this opinion in a letter of interpretation, published recently on the agency’s website.

The letter is addressed to Congresswoman Marcy Kaptur (D-OH), who relayed to OSHA a letter from a constituent asking whether her employer could mandate that she accept a flu shot. According to the constituent, her employer had “threatened the employees with mandatory time off” if they did not accept the flu shots.

OSHA responded, first, by reiterating its guidance that healthcare employers should offer both the seasonal and H1N1 vaccines to employees and that employees should be informed of the vaccines’ benefits. It added, however, that employers may require employees to take the vaccines, even though OSHA has no published standard containing this requirement. OSHA also provided a cautionary note: an employee who refuses to be vaccinated because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11(c) of the OSH Act, which prohibits discrimination against employees who exercise their safety and health rights.

The issue of whether employers can require employees to take flu vaccines has been controversial for both employers and employees. OSHA appears to be stepping directly into this controversy. Even though media attention over the H1N1 virus has subsided for the moment, the issue of mandatory vaccines for employees is one that likely will recur during the next flu outbreak.

While employers should be aware of OSHA’s interpretation, they also must be mindful of other laws and regulations that may be applicable to issues affecting mandatory vaccinations. Collective bargaining agreements also may be relevant. Employers should consider all of this information before adopting any vaccination policies.

In a move sure to be viewed by some as a prelude to a new ergonomics rulemaking, OSHA has proposed adding a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). (The initial 2001 recordkeeping final rule had included an MSD column, but OSHA later deleted that column before the provision ever became effective.) The rule also proposes the same definition of “MSDs” that OSHA had included in the initial 2001 final rule. 

This is an important and fast-moving rulemaking. Interested stakeholders are encouraged to review the proposal thoroughly and provide comments to the agency. The comment period ends on March 15, 2010; the agency is holding a public meeting on the proposal on March 9, 2010.

Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

OSHA describes this proposed rule as a non-significant regulatory action involving only two small costs for employers. OSHA believes that:

1.      employers – and specifically a human resources specialist – will be required to spend 5 minutes familiarizing themselves with the rule; and  

2.      employers will need to spend one additional minute than they currently spend in analyzing an injury or illness to determine whether it should be classified as an “MSD” and put into the correct column on the new recordkeeping forms.

OSHA’s action takes the agency back a decade to the end of the Clinton Administration, when OSHA completed its revised recordkeeping rule with a separate MSD column. Of course, many stakeholders will ask if this move signals a return to the other Clinton Administration rulemaking on MSDs: ergonomics. That rule was rescinded by Congress and President Bush under the Congressional Review Act.  OSHA’s leadership has insisted that this rulemaking is totally separate from any ergonomics initiative and should not be interpreted as a first step to a new ergonomics rule. However matters may develop on ergonomics, this rulemaking is important in its own right as it affects – by OSHA’s own count – approximately 1.5 million workplaces around the country.

As of January 27, 2010, OSHA’s State Plan webpage is reporting that all State Plan States have indicated an intent to adopt OSHA’s Recordkeeping National Emphasis Program (NEP). (OSHA will continually update the webpage as it gathers additional information from the State Plan States regarding adoption.)  OSHA launched the NEP, effective September 30, to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. State Plan State adoption further broadens the potential scope of this significant enforcement initiative.

Of the 26 State Plan States adopting, 14 States have indicated an intent to adopt an identical NEP, according to OSHA’s website. These States are: Arizona, California (adopted on 11/30/2009), Hawaii, Indiana, Kentucky, Maryland, Michigan, North Carolina, Nevada, Tennessee (adopted on 11/1/2009), Utah, Virginia, the Virgin Islands, and Vermont.

The following States have indicated that they will adopt a different recordkeeping NEP: Alaska, Connecticut, Iowa, Minnesota, New Jersey, New Mexico, New York, Oregon, Puerto Rico (adopted on 1/4/2010), South Carolina, Washington, and Wyoming.

Jackson Lewis has prepared a special report on the federal NEP and recorded (with SmartPros Ltd.) two recordkeeping seminars to assist employers in preparing for the NEP and ensuring their recordkeeping practices are fully compliant with OSHA’s rules.  The first is Course 2215, OSHA’s Record-Keeping NEP:  What It Is and What You Need to Do to Prepare, which explains OSHA’s Recordkeeping NEP in detail.  The second is Course 2210, The OSHA Record-Keeping "Great Eight," which goes through eight key principles for OSHA recordkeeping compliance.

OSHA is determined to ascertain whether, and to what extent, injuries and illnesses are under-recorded.   Employers must be prepared.

In mid-December 2009, Professor David Michaels was sworn in as the new Assistant Secretary of Labor for OSHA.  Shortly after being sworn in as Assistant Secretary, Professor Michaels gave an interesting speech at the National Institute for Occupational Safety and Health (NIOSH) Going Green Workshop.  The speech was entitled “Making Green Jobs Safe: Integrating Occupational Safety and Health into Green and Sustainability,” and provides a good glimpse as to where he would like to take OSHA in 2010 and beyond.

Professor Michaels’ speech touched on many important issues with respect to occupational safety and health.  In particular, he emphasized the need for workers to be heavily involved in workplace safety, to know the hazards they may face, and to work with their employers to identify and correct hazards in the workplace.  “To get us up to date and move into a safer, healthier future, it’s . . . clear that workers must have a stronger voice in workplace safety than they have now.”  Professor Michaels has always been a strong proponent of safety and health management systems, whereby employers and employees deal proactively with workplace hazards through management leadership, employee participation, hazard identification and control, and system evaluation.  His speech certainly suggests that he will continue to push this as head of OSHA.

Professor Michaels also mentioned OSHA’s “substantial” budget increase, which will “significantly increase the number of inspectors” OSHA puts in the field and the need to update many of OSHA’s outdated standards.  Translation:  the Agency must do everything it can to increase enforcement and engage in smart rulemaking to “to create good standards.”

So what does all this boil down to as a practical matter?  In 2010, employers should expect OSHA to continue to push forward aggressively on enforcement and regulatory initiatives.  Some specific initiatives to watch out for include a:

Final Cranes and Derricks in Construction rule. OSHA staff have been working diligently to finalize a rule addressing hazards associated with crane operations.  If the rule is finalized as proposed, it would be one of the largest overhauls of the nation’s safety regulations in the Agency’s history.  OSHA’s existing rules for cranes in construction take up only a few pages of the Code of Federal Regulations with several cross-references to outdated national consensus standards.  The proposed rule and preamble, in contrast, fill out 250 densely packed pages of the Federal Register.  The proposal contains over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.

Crystalline Silica Proposed Rule.  Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust.  OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and lung cancer.  It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade and the Agency seems poised to take that next step in 2010.  Expect a proposed rule on silica to be released sometime this year, as OSHA pushes forward on this longstanding initiative.

New Approach on Ergonomics.  For the last year, various administration officials have stressed the importance of OSHA dealing with WMSDs and ergonomics.  WMSDs still comprise a significant percentage of workplace injuries every year.  WMSDs occur in every industry and in every job throughout the country.

Almost a decade ago, the Clinton Administration finalized an ergonomics standard that would have required all general industry employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management.  It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods of time they are out of work due to a work-related injury.

Congress and President Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA).  As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard.  No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.

OSHA cannot keep avoiding the issue of ergonomics and likely will start to take on the issue in 2010 of what it can and cannot do under the CRA.  It will also likely increase ergonomics enforcement under the General Duty Clause.
 

No matter what happens in 2010, we will keep you up-to-date in this space on the latest OSHA developments.