The Centers for Disease Control and Prevention, anticipating a spread of the H1N1 flu, has released new guidelines to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees, and operations.

The guidelines urge employers to work with employees to develop and implement plans that can reduce the spread of flu.  They push for the preparation of plans that address such points as encouraging employees with flu-like symptoms to stay home, operating with reduced staffing and, where feasible, having employees who are at higher risk of serious medical complications from infection work from home.

Employers also might cancel non-essential face-to-face meetings and travel, and space employees farther apart in the workplace, the guidelines say.

The guidelines provide a list of “Actions Employers Should Take Now,” including:

  • Review or establish a flexible influenza pandemic plan and involve employees in developing and reviewing the plan;
  • Conduct a focused discussion or exercise using the plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected before flu season;
  • Have an understanding of normal seasonal absenteeism rates and know how to monitor personnel for any unusual increases in absenteeism through the fall and winter;
  • Allow sick workers to stay home without fear of losing their jobs;
  • Develop other flexible leave policies to allow workers to stay home to care for sick family members or for children if schools dismiss students or child care programs close; and
  • Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.

We will keep you apprised of other developments as the fall flu season approaches.

A special thanks to Mei Fung So of Jackson Lewis who prepared this blog post.

OSHA has announced a new National Emphasis Program (NEP) to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. Chemical facilities with PSM-covered processes should review their programs now to ensure full compliance with OSHA standards.

The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.” Chemical facilities in the Northeast (OSHA’s Region 1), the Plains States (OSHA’s Region VII), and the Northwest and Alaska (OSHA’s Region X) will be subject to programmed inspections under the NEP. The NEP will apply to unprogrammed inspections for PSM-covered processes OSHA-wide.

In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation:

Based on past inspection history at refineries and large chemical plants, OSHA has found that employers may have an extensive written process safety management program, but insufficient program implementation. Therefore, CSHOs should verify the implementation of PSM elements to ensure that the employer’s actual program is consistent with their written program.

Compliance officers also are instructed at the start of inspections to request numerous documents from employers, some of which are not required to be kept under the standard (e.g., a list of all PSM-covered process/units in the complex, a summary description of the facility’s PSM program, safe upper and lower operating limits for certain covered units). According to OSHA, however, they represent “documents typically compiled by employers with PSM-covered processes at their facilities.” Furthermore, OSHA will examine under the NEP all contractors – including construction contractors – working on or adjacent to PSM-covered units being inspected.

This is just the first of several key NEPs OSHA will be releasing. OSHA’s Recordkeeping NEP should be released within days, and other NEPs on Food Flavorings, Oil and Gas Well Drilling, Primary Metals, and Hexavalent Chromium are in the works.

We will continue to keep you apprised of all of OSHA’s enforcement initiatives.

President Barack Obama has announced he intends to nominate Professor David Michaels to be the Assistant Secretary of OSHA. Professor Michaels is the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C. If confirmed, Professor Michaels will join Acting Assistant Secretary of OSHA Jordan Barab in the political leadership of the safety and health agency.

In addition to his current position with George Washington University, Professor Michaels has a long history in public health. During the Clinton Administration, Professor Michaels was Assistant Secretary for Environment Safety and Health at the Department of Energy, where he played a role in overseeing safety and health issues for employees at nuclear weapons facilities.

While it is too early to predict Professor Michaels’s likely priorities, in past writings, he has indicated the need for OSHA:  (1) to issue a workplace injury and illness prevention program rule; and (2) to develop an electronic recordkeeping and reporting system. Both would further past and present OSHA initiatives.  

During the Clinton Administration, OSHA developed, but never issued, a Safety and Health Program rule which would have required employers to implement a broader process for preventing injuries and illnesses in the workplace. Should Professor Michaels be confirmed, he may press his interest in an injury and illness prevention program rule, likely reigniting discussions regarding the need for employers to implement safety and health programs at their worksites. 

A potential electronic recordkeeping system also fits neatly into OSHA’s current enforcement efforts. OSHA will be releasing a Recordkeeping National Emphasis Program (NEP) in the next few weeks, which will focus enforcement resources on recordkeeping inspections in certain establishments. OSHA will perform thorough records reviews and investigate the extent to which employers may be discouraging workers from reporting injuries and illnesses. The Department is intent on rooting out underreporting.  An electronic recordkeeping system could make it easier for the agency to monitor worksite injuries and illnesses and possible underreporting.

No information has been released as to when Professor Michaels’s confirmation hearings may be held. This announcement, however, may calm the uncertainty that had been swirling around OSHA as to who would be the permanent political head of the agency.

We will, of course, continue to keep you apprised of developments with respect to the nomination.

OSHA has announced it is targeting for inspections federal agency workplaces staffed by federal employees or by contractors whose work is supervised on a day-to-day basis by federal agency personnel. The agency initiative will focus enforcement resources on those worksites experiencing a high number of lost time injury cases. Employers who work as contractors to federal agencies should review the targeting program and prepare for a possible inspection – particularly if they have employees performing hazardous work.

The new inspection targeting program – “FEDTARG 09” effective June 16, 2009 – directs inspections at federal agency establishments that experienced large numbers of lost time injuries in fiscal year 2009, as reported by the federal Office of Workers Compensation Programs. OSHA regional offices are directed to develop a primary inspection list that will include 100% of the establishments within the region reporting 100 or more lost time cases, 50% of the establishments reporting 50-99 lost time cases, and 10% of the establishments reporting 20-49 lost time cases. All sites on the primary inspection list must be inspected.

Contractors who are supervised by federal workers should take note of this and prepare. Inspections conducted under FEDTARG 09 will be comprehensive safety inspections. The inspections also will cover ergonomics, with compliance officers instructed to consult with the region’s ergonomics coordinator on musculoskeletal disorder issues.

Should the OSHA compliance officer see contractors performing work that is not being supervised by a federal agency worker, the officer may open up another inspection relating to the contractor specifically, if the compliance officer observes any hazards. In short, contractors performing work on federal agency worksites are fair game under FEDTARG 09.

Acting Assistant Secretary of Labor Jordan Barab, in announcing the program, stated, “OSHA’s mission of protecting worker safety doesn’t begin and end with private industry.” That is true. In this instance, however, it does not begin and end with federal employees either. FEDTARG 09 targets both federal agencies and private employers, and both need to be prepared.

Citing the high number of construction fatalities in Texas, Secretary of Labor Hilda Solis announced recently that OSHA will start a new enforcement initiative targeting the construction industry in that state. Secretary Solis made the announcement in San Antonio at the annual conference of the American Society of Safety Engineers. Construction employers in Texas should take note of this new initiative and ensure that they continue to be fully compliant with OSHA standards.

While there are few details of the new enforcement initiative available, Secretary Solis stated that:

  • Beginning in July, OSHA will increase the number of inspectors in Texas; and
  • Inspectors will be authorized to launch an immediate investigation of a construction worksite, whenever they observe “unsafe scaffolds, fall risks, trenches or other hazards.”

Secretary Solis stated that in 2008, there were 67 construction fatalities in Texas and in 2009 there already have been 33 fatalities reported. According to the Secretary, more workers die in Texas than in any other state.

This initiative is just one part of OSHA’s expanded enforcement efforts under the new Labor Secretary. OSHA will be hiring over 100 new inspectors and issuing five new National Emphasis Programs.  In San Antonio, Secretary Solis reiterated her commitment to more enforcement: “As I have said since my first day on the job – the U.S. Department of Labor is back in the enforcement business.”

We will, of course, keep you informed as more details of this and other enforcement initiatives become available.

When OSHA launches its recordkeeping National Emphasis Program (NEP) later this year, employers cannot accuse the agency of inadequate warning. Since early March, OSHA officials have signaled the impending NEP. Employers should take time now to review their OSHA recordkeeping logs and practices to prepare for an NEP inspection.

Just last week, OSHA reminded us how seriously it is taking recordkeeping and the perceived underreporting of occupational injuries and illnesses. The Bureau of National Affairs (BNA) reported on remarks by Acting Assistant Secretary of OSHA, Jordan Barab, at the annual American Society of Safety Engineers convention in San Antonio: 

Barab said OSHA’s pending recordkeeping National Emphasis Program will scrutinize companies in high-risk industries that post strikingly low accident and injury rates. OSHA inspectors will look not only at a company’s records but also its safety policies, he said. In particular, agency inspectors will look for companies that discourage their employees from reporting workplace accidents, Barab said. 

The recordkeeping NEP will involve more than just a standard records review. Employer programs that “discourage” employees from reporting workplace accidents will be targeted by OSHA. Unfortunately, OSHA has not provided additional information on the types of programs it is concerned about. However, OSHA had a provision in the Clinton Administration’s ergonomics standard, which was revoked by Congress and President Bush in 2001, which sought to address a similar concern. OSHA required in that rule that employers not develop policies that discourage the reporting of musculoskeletal disorders (MSDs). In the preamble to the final rule, OSHA suggested that the following could run afoul of this provision: 

  • Disciplining employees for reporting injuries, without considering the cause of those injuries;
  • Establishing incentive programs that offer rewards to employees or groups of employees based on a low number of reported injuries;
  • Implementing programs where manager or supervisor performance reviews or bonuses are tied to the number of reported injuries and illnesses; and
  • Instituting drug testing programs, when applied to all workers who report MSDs.

Employers should prepare for an OSHA recordkeeping inspection by taking some time to: 

  • Review their 300 logs and 301 incident reports for accuracy;
  • Ensure their 300 logs reflect information from the 301 incident reports; and
  • Compare all their OSHA recordkeeping forms with any workers’ compensation reports and claims.

As important, employers should look at their safety incentive programs and injury and illness reporting procedures for any evidence that these protocols are discouraging employee reports.

 

Roger Kaplan, a Partner in Jackson Lewis’s Long Island office, contributed to this Post. 

With summer weather starting to sweep across the country, OSHA has issued guidance on protecting workers from the adverse health effects of heat at work. Employers should take note as OSHA has called excessive heat a recognized hazard and has cited employers under the General Duty Clause of the Occupational Safety and Health Act of 1970 for failing to take feasible steps to address workplace exposures to heat.

The new guidance lists the following factors that can lead to heat stress:
 

  • High temperature and humidity;
  • Direct sun or heat;
  • Limited air movement;
  • Physical exertion;
  • Poor physical condition;
  • Some medicines;
  • Inadequate tolerance for hot workplaces; and
  • Insufficient water intake.

To prevent the adverse effects of heat – heat stroke, heat exhaustion, heat cramps, and heat rashes – OSHA recommends that employers consider a variety of administrative and work practice controls. These include:
 

  • Acclimating workers to heat by exposing them to work in a hot environment for progressively longer periods;
  • Providing cool liquids to employees (not including caffeinated beverages) and encouraging them to drink small amounts frequently (e.g., one cup every 20 minutes);
  • Reducing physical demands, such as excessive lifting, climbing, or digging and, if necessary, use relief workers or assign extra workers to minimize overexertion;
  • Providing recovery areas such as air-conditioned enclosures;
  • Providing intermittent rest breaks;
  • Rescheduling hot jobs to the cooler part of the day; and
  • Monitoring workers who are at risk of heat stress by checking their heart rate and oral temperature.

OSHA also recommends employers consider certain personal protective equipment (PPE) to address heat hazards, such as loose-fitting reflective clothing, wetted clothing, and water-cooled garments. 

With its new guidance, OSHA is putting employers on notice that they need to take heat-related illness seriously. Employers are encouraged to do so, particularly as we get deeper and deeper into the summer months.

Representative John Conyers  (D-Mich.) has once again introduced in the House of Representatives a bill that would require the Occupational Safety and Health Administration (OSHA) to promulgate a safe patient handling and injury prevention standard. The “Nurse and Health Care Worker Protection Act of 2009” has reignited the debate over the proper approach to ensuring employee and patient safety in the health care industry.

The Health Care Worker Protection Act would require OSHA, not later than one year from the date of promulgation of the bill into law, to publish a proposed rule to require health care employers to, among other things:

  • use engineering controls to perform patient lifting and repositioning of patients and to eliminate all manual lifting of patients by health care workers, except where the use of safe patient handling practices is demonstrated to compromise patient care;
  • implement a safe patient handling and injury prevention plan including hazard identification, risk assessments, and control measures; and
  • obtain input from direct-care registered nurses, health care workers, and employee representatives in developing and implementing the safe patent handling and injury prevention plan, including the purchase of equipment.

The legislation would also provide specific whistleblower protections for any health care worker who in good faith reports a violation or suspected violation of the Act. Under the legislation, OSHA would have to finalize the safe patient handling rule within two years from the date of passage.

This is not the first time that this or similar legislation has been introduced in Congress. However, with the Democratic majorities in both the House of Representatives and the Senate, and Democratic control of the White House, there is greater momentum behind the bill. In addition, the Acting Head of OSHA, Jordan Barab, recently signaled a willingness to consider industry-specific ergonomics rulemakings to deal with high-hazard industries.

Almost a decade ago, OSHA finalized an ergonomics standard that would have required all health care 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 they are out of work due to a work-related injury.

Congress and President George W. 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.

The Acting Head of OSHA recently suggested that OSHA is considering an industry-by-industry approach to ergonomics as an acceptable method to pursue some ergonomics rulemaking in light of the CRA. The health care industry is a prime target for OSHA attention. It has high musculoskeletal injury rates, compared with the average of all of private industry. In addition, just a few years ago OSHA published its “Ergonomics for the Prevention of Musculoskeletal Disorders: Guidelines for Nursing Homes,” which detailed a variety of ergonomic controls for employers to implement to assist in patient handling.

Health care employers stay tuned.  There will certainly be more on ergonomics and the health care industry over the next several months.

 

In a harbinger of things to come, OSHA recently released comprehensive guidance on controlling silica exposures in construction.  The document is over 70 pages and details control methods for a variety of operations in construction, including:

  • Stationary masonry saws
  • Handheld masonry saws
  • Hand-operated grinders
  • Tuckpointing/mortar removal
  • Jackhammers
  • Rotary hammers and similar tools
  • Vehicle-mounted rock drilling rigs
  • Drywall finishing

The two control measures most commonly recommended throughout the document are:

  1. Wet methods, whereby water is sprayed at the source of the silica dust generation thus reducing the dust that can become airborne, and
  2. Vacuum dust systems, whereby grinders or other tools are equipped with a vacuum collection device that captures the silica released at the point of operation.

The document also provides guidance to employers on the current silica permissible exposure limit (PEL) for construction. The current PEL is expressed through millions of particles per cubic foot (mppcf). This “particle count” method is now obsolete and it has been giving the agency enforcement headaches for years. In the guidance document, the agency evaluates the effectiveness of controls not against the silica construction PEL, but against a benchmark 8-hour time-weighted average (TWA) exposure of .1 mg/m3 of respirable silica dust. The agency states that this benchmark level is actually lower than the current construction PEL and thus, for employers following the benchmark level, they will be in compliance with the construction PEL.

The guidance document is also important as an indicator of where OSHA is heading in its upcoming silica rulemaking. The data on which the recommendations in the guidance document are based will be the same as that used by the agency to justify the technological and economic feasibility of a final silica standard.

OSHA’s silica rulemaking is one of the Obama administration’s highest priorities. The next step in the rulemaking process is for OSHA to conduct a peer review of the proposed rule’s risk assessment and health effects. This early look at the agency’s risk assessment for silica will be valuable in seeing the agency’s plans for the PEL. Will it be lowered? And if so, by how much?

OSHA is focused on silica and the guidance document is just the first of more to come.