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 However, OSHA had a provision in the Clinton Administration’s ergonomics standard, which was revoked by Congress and President Bush in 2001, which sought to address a similar concern.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.
 

Signaling its renewed focus on regulatory means to address occupational hazards, OSHA is pursuing comprehensive rulemaking to prevent combustible dust explosions. The Agency announced it will be issuing an Advance Notice of Proposed Rulemaking (ANPR) and convening stakeholder meetings to evaluate approaches to regulating combustible dust. Employers with combustible dust hazards in their worksites are encouraged to participate in the rulemaking process.

Combustible dusts are solids ground into fine particles, which can cause a fire or explosion when suspended in air under certain circumstances. Common examples of combustible dusts include metal (aluminum and magnesium), wood, plastic, rubber, coal, flour, sugar, and paper, among others. OSHA has identified a number of industries with combustible dust hazards, including agriculture, chemicals, food, grain, plastics, wood, paper, textiles, pharmaceuticals, tire and rubber manufacturing, and metal processing. While certain OSHA standards provide some protection against combustible dust, for example, Housekeeping (29 CFR 1910.22) and Electrical Equipment in Hazardous Locations (29 CFR 1910.307), OSHA does not have a single comprehensive rule to protect employees from combustible dust explosions.

OSHA’s announcement was expected. Over the last several years, the Agency has published non-mandatory guidance on combustible dust hazards and the prevention of combustible dust explosions. Furthermore, there has been significant congressional interest in the issue. In the last Congress, the House of Representatives passed a bill to force OSHA to issue an interim and final combustible dust standard within 3 and 18 months, respectively. On February 4 of this year, Representatives George Miller, Lynn Woolsey, and John Barrow re-introduced this bill.

Secretary of Labor Solis, in announcing the combustible dust rulemaking, stated that “OSHA is reinvigorating the regulatory process to ensure workers receive the protection they need while also ensuring that employers have the tools needed to make their workplaces safer.” Employers must remain alert to OSHA’s regulatory initiatives and participate in the rulemaking process.

In a new letter of interpretation, OSHA has confirmed that injuries to employees sustained at off-site team-building events are recordable on OSHA logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid). Employers are encouraged to review their recordkeeping practices to ensure that they are complying with this interpretation of OSHA’s recordkeeping rule.

OSHA was asked whether an injury incurred while an employee was go-cart racing at an off-site team-building activity was “work-related” under OSHA’s rule. In the scenario presented to OSHA, employees were not required to participate in the go-cart racing or other team building events. However, they were required to attend an off-site meeting and luncheon. In OSHA’s view, the employee was at the go-cart facility as a condition of employment and thus was “in the work environment.” Any injury or illness that arises is therefore presumed to be work-related in the view of the Agency.

Employers often hold team-building events at locations outside the workplace. If injuries occur during these events, employers must record them on their OSHA logs, assuming the injuries meet other recordability criteria.

With OSHA developing a National Emphasis Program on recordkeeping, now is the time for employers to review their recordkeeping procedures and logs to ensure they are fully compliant.
 

Signaling its renewed focus on enforcement, OSHA has announced it is developing six new National Emphasis Programs (NEPs). NEPs focus OSHA’s resources on industries, hazards, and occupational injuries and illnesses that need additional targeted enforcement, in the Agency’s view.

OSHA’s Director of Enforcement Programs revealed the following industry-specific NEPs are in development:

 

  • Chemical plants – process safety management;
  • Primary metals;
  • Flavorings and diacetyl; and
  • Oil and gas well drilling.

Employers in these industries should expect additional inspections and take steps now to ensure their safety and health practices are fully compliant with OSHA requirements.

 

Even more employers, however, can anticipate increased scrutiny on account of OSHA’s recordkeeping initiative. As a result of questions raised by Congress and labor organizations that injuries and illnesses are underreported, OSHA announced it is developing a recordkeeping NEP. All employers who are required to keep OSHA injury and illness logs should review them now for accuracy, completeness, and appropriate certification.

 

Finally, OSHA is developing an NEP dealing with occupational asthma, a growing area of concern for OSHA and the National Institute for Occupational Safety and Health.

 

In a recent speech, newly confirmed Secretary of Labor Solis committed OSHA to increased enforcement. These NEPs will drive much of that enforcement in coming months. 

In a recent letter of interpretation addressing a common issue at worksites around the country, OSHA confirmed that injuries to employees sustained at the worksite as a result of “horseplay” are recordable on OSHA Logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid).

The interpretation stems from an incident described as “horseplay gone badly.” At the end of a work day, two supervisors got into a physical confrontation while changing to go home. One supervisor pulled a knife and stuck the other in the arm, resulting in several sutures.

OSHA stated that the injury was recordable. First, because the injury resulted from an event occurring in the work environment, it was presumed to be work-related and none of the exceptions to this “geographic presumption” applied. The exceptions include, among other things, injuries such as those resulting from an employee eating, drinking, or preparing food for personal consumption, those involving signs or symptoms that surface at work but result solely from a non-work-related event, and those caused by a motor vehicle accident occurring on a company parking lot while the employee is commuting to or from work. Second, because the injury required medical treatment beyond first aid, OSHA concluded that it satisfied the other recordability criteria related to severity.

OSHA dismissed as essentially irrelevant the issue of whether the injury resulted from activities that were “not directly productive” to the employer’s work. OSHA also reiterated that there is no general exception under the recordkeeping rule for violence that occurs at the worksite.

Situations such as this are all too common in the workplace. Aside from taking steps to address violence in the workplace generally, employers must ensure that when an incident occurs and injury results, it is properly recorded under OSHA’s rules, if warranted.