Advertisements

“OSHA Electronic Recordkeeping Final Rule Places New Requirements On Employers”

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published a long-awaited final rule requiring certain employers to electronically submit injury and illness data, providing for such data to be made publicly available, and updating employee notification and antiretaliation provisions.

Background

OSHA is charged with enforcing the Occupational Safety and Health Act of 1970 (OSH Act), which applies to virtually all private employers. OSHA, either directly or through states with parallel agencies to which OSHA defers rulemaking and enforcement, requires almost all employers to prepare and maintain routine records of certain work injuries and illnesses (“recordable” incidents). These records include a report for each recordable incident (Form 301), a log of such incidents (Form 300), and an annual summary (Form 300A) that must be completed and posted even if no recordable incidents occurred during the year.

Previously, OSHA could obtain the establishment-specific injury and illness data contained in these routine records only in three limited ways: (1) workplace inspections, (2) surveys to employers under the OSHA Data Initiative, and (3) mandatory employer reporting of certain workplace illnesses and injuries, including fatalities.

The final rule greatly expands OSHA’s access to this information by requiring certain employers to regularly and electronically submit data from their routine records. Specifically, the rule requires the following:

  • Establishments with 250 or more employees that are required to keep routine records must electronically submit required information from all three records annually (no later than March 2 of the year after the calendar year covered by the form).
  • Establishments with 20 to 249 employees in certain industries must electronically submit required information from Form 300A annually (no later than March 2 of the year after the calendar year covered by the form).
  • Establishments must electronically submit requested information from their routine records upon notification from OSHA

OSHA plans to phase in implementation of the data collection system beginning July 2017. By March 2019, all establishments covered under the final rule must submit all required information.

OSHA hopes the electronic submission requirements will help it use resources more effectively and encourage employers to prevent worker injuries and illnesses by allowing the agency to obtain a much larger and more timely database of the information that most employers are already required to record.

Publication of illness and injury data

Notably, OSHA will make the collected information publicly available in a searchable online database. The agency hopes that researchers and the public will also be able to use the data to identify work-related hazards and particularly hazardous industries and processes.

OSHA insists that it doesn’t intend to release personally identifiable information from reported records and that it will use “software that will search for and de-identify personally identifiable information before OSHA posts the data.” Given the frequency of media reports on the fallibility of even the most sophisticated data security systems and companies, many are understandably skeptical about the agency’s ability to safeguard employee information under this new electronic reporting system.

Employee notification and retaliation

The final rule also amends OSHA’s record-keeping regulation with respect to how employers inform employees to report work-related injuries and illnesses. This part of the rule:

  • (1)  Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation;
  • (2)  Clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses be reasonable and that a procedure that would deter or discourage reporting isn’t reasonable; and
  • (3)  Prohibits employers from retaliating against employees for reporting work-related injuries or illnesses, consistent with the existing “whistleblower” provisions in Section 11(c) of the OSH Act.

The third aspect of this part of the new rule is significant because it provides OSHA with an additional enforcement tool with respect to employee retaliation. Whereas OSHA could always take action against an employer in response to an employee complaint under Section 11(c), OSHA will now be able to issue citations to employers for retaliating against employees even absent an employee complaint. The agency anticipates that feasible abatement methods will mirror the remedies under Section 11(c), which include but aren’t limited to rehiring or reinstatement with back pay. Employers can contest citations before the independent Occupational Safety and Health Review Commission.

OSHA explains that the final rule prohibits retaliatory adverse action against an employee “simply because” she reported a work-related injury or illness. To that end, the final rule states that nothing in it “prohibits employers from disciplining employees for violating legitimate safety rules, even if the same employee . . . was injured as a result of that violation and reported that injury or illness.” Importantly, employees who violate the same work rule must be treated similarly regardless of whether they also reported a work-related illness or injury. The final rule notes that postinjury drug-testing policies and employee safety incentive programs will be scrutinized under this provision.

States with their own occupational safety and health plans will be required to adopt identical requirements in their record-keeping and reporting regulations.

The employee notification and retaliation provisions become effective August 10, 2016. The remainder of the final rule becomes effective January 1, 2017.

Bottom line

OSHA continues to push through initiatives intended to raise the bar on workplace safety and health standards, including with respect to employer record keeping and reporting. In light of the 80 percent penalty increases in effect this summer, you should consult with counsel to ensure you comply with any new obligations that may apply under this new rule.

Arielle Sepulveda is an attorney with Day Pitney LLP in Parsippany, New Jersey. She can be reached at 973-966-8063 or asepulveda@daypitney.com.

Source:BLR® and Conn Maciel, Carey PLLC
Advertisements

“OSHA’s Final Rule to Protect Workers from Exposure to Respirable Crystalline Silica”

Rule requires engineering controls to keep workers from breathing silica dust

The Occupational Safety and Health Administration (OSHA) has issued a final rule to curb lung cancer, silicosis, chronic obstructive pulmonary disease and kidney disease in America’s workers by limiting their exposure to respirable crystalline silica. The rule is comprised of two standards, one for Construction and one for General Industry and Maritime.

OSHA estimates that the rule will save over 600 lives and prevent more than 900 new cases of silicosis each year, once its effects are fully realized. The Final Rule is projected to provide net benefits of about $7.7 billion, annually.

About 2.3 million workers are exposed to respirable crystalline silica in their workplaces, including 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone, and 300,000 workers in general industry operations such as brick manufacturing, foundries, and hydraulic fracturing, also known as fracking. Responsible employers have been protecting workers from harmful exposure to respirable crystalline silica for years, using widely-available equipment that controls dust with water or a vacuum system.

Key Provisions

  • Reduces the permissible exposure limit (PEL) for respirable crystalline silica to 50 micrograms per cubic meter of air, averaged over an 8-hour shift.
  • Requires employers to: use engineering controls (such as water or ventilation) to limit worker exposure to the PEL; provide respirators when engineering controls cannot adequately limit exposure; limit worker access to high exposure areas; develop a written exposure control plan, offer medical exams to highly exposed workers, and train workers on silica risks and how to limit exposures.
  • Provides medical exams to monitor highly exposed workers and gives them information about their lung health.
  • Provides flexibility to help employers — especially small businesses — protect workers from silica exposure.

Compliance Schedule

Both standards contained in the final rule take effect on June 23, 2016., after which industries have one to five years to comply with most requirements, based on the following schedule:

Construction – June 23, 2017, one year after the effective date.

General Industry and Maritime – June 23, 2018, two years after the effective date.

Hydraulic Fracturing – June 23, 2018, two years after the effective date for all provisions except Engineering Controls, which have a compliance date of June 23, 2021.

Background

The U.S. Department of Labor first highlighted the hazards of respirable crystalline silica in the 1930s, after a wave of worker deaths. The department set standards to limit worker exposure in 1971, when OSHA was created. However, the standards are outdated and do not adequately protect workers from silica-related diseases. Furthermore, workers are being exposed to silica in new industries such as stone or artificial stone countertop fabrication and hydraulic fracturing.

A full review of scientific evidence, industry consensus standards, and extensive stakeholder input provide the basis for the final rule, which was proposed in September 2013. The rule-making process allowed OSHA to solicit input in various forms for nearly a full year. The agency held 14 days of public hearings, during which more than 200 stakeholders presented testimony, and accepted over 2,000 comments, amounting to about 34,000 pages of material. In response to this extensive public engagement, OSHA made substantial changes, including enhanced employer flexibility in choosing how to reduce levels of respirable crystalline silica, while maintaining or improving worker protection.

More Information and Assistance

OSHA looks forward to working with employers to ensure that all workers exposed to respirable crystalline silica realize the benefits of this final rule. Please check back for frequent updates on compliance assistance materials and events, and learn about OSHA’s on-site consulting services for small business.

OSHA approved State Plans have six months to adopt standards that are at least as effective as federal OSHA standards. Establishments in states that operate their own safety and health plans should check with their State Plan for the implementation date of the new standards.

“U.S. Chemical Safety Board Releases New Safety Video, “Dangerously Close: Explosion in West, Texas,” Detailing Report Findings and Recommendations on 2013 Fatal West Fertilizer Company Explosion and Fire “

January 29, 2016, Washington, DC – Today the U.S. Chemical Safety Board (CSB) released a safety video into the fatal April 17, 2013, fire and explosion at the West Fertilizer Company in West, Texas, which resulted in 15 fatalities, more than 260 injuries, and widespread community damage. The deadly fire and explosion occurred when about thirty tons of fertilizer grade ammonium nitrate (FGAN) exploded after being heated by a fire at the storage and distribution facility.

The CSB’s newly released 12-minute safety video entitled, “Dangerously Close: Explosion in West, Texas,” includes a 3D animation of the fire and explosion as well as interviews with CSB investigators and Chairperson Vanessa Allen Sutherland. The video can be viewed above or on the CSB’s website and YouTube.

Chairperson Sutherland said, “This tragic accident should not have happened. We hope that this video, by sharing lessons learned from our West Fertilizer Company investigation, will help raise awareness of the hazards of fertilizer grade ammonium nitrate so that a similar accident can be avoided in the future.”

The CSB’s investigation found that several factors contributed to the severity of the explosion, including poor hazard awareness and fact that nearby homes and business were built in close proximity to the West Fertilizer Company over the years prior to the accident. The video explains that there was a stockpile of 40 to 60 tons of ammonium nitrate stored at the facility in plywood bins on the night of the explosion. And although FGAN is stable under normal conditions, it can violently detonate when exposed to contaminants in a fire.

In the video, Team Lead Johnnie Banks says, “We found that as the city of West crept closer and closer to the facility, the surrounding community was not made aware of the serious explosion hazard in their midst. And the West Fertilizer Company underestimated the danger of storing fertilizer grade ammonium nitrate in ordinary combustible structures.”

The CSB investigation concludes that this lack of awareness was due to several factors, including gaps in federal regulatory coverage of ammonium nitrate storage facilities. The video details safety recommendations made to OSHA and the EPA to strengthen their regulations to protect the public from hazards posed by FGAN.

Finally, the video explains how inadequate emergency planning contributed to the tragic accident. The CSB found that the West Volunteer Fire Department was not required to perform pre-incident planning for an ammonium nitrate-related emergency, nor were the volunteer firefighters required to attend training on responding to fires involving hazardous chemicals. As a result, the CSB made several safety recommendations to various stakeholders, including the EPA, to better inform and train emergency responders on the hazards of FGAN and other hazardous chemicals.

Chairperson Vanessa Allen Sutherland said, “The CSB’s goal is to ensure that no one else be killed or injured due to a lack of awareness of hazardous chemicals in their communities. If adopted, the Board’s recommendations can help prevent disasters like the one in West, Texas.”

The CSB is an independent federal agency charged with investigating serious chemical accidents. The agency’s board members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems. The Board does not issue citations or fines but makes safety recommendations to companies, industry organizations, labor groups, and regulatory agencies such as OSHA and EPA. Please visit our website, www.csb.gov

For more information, contact Communications Manager Hillary Cohen at public@csb.gov or by phone at 202.446.8095.

 

“New DOJ/DOL Initiative Criminalizes Worker Safety Violations – Employment Law This Week”

One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is that in a year when OSHA penalties are already set to increase, a new enforcement initiative is putting pressure on companies to make sure they’re compliant.

The Department of Justice and the Department of Labor have teamed up to encourage federal prosecutors to pursue OSHA and other worker safety violations as environmental crimes. These crimes can be charged as felonies, while OSHA violations are considered misdemeanors. The initiative will facilitate the sharing of information and files between the DOJ and DOL to pursue criminal actions.

See above to view the episode and a related client ( Below video on YouTube) advisory co-authored by our own Valerie Butera.

Source: OSHA Law Update – 1-26-2016

 

“OSHA Can Now Cite Facilities It Hasn’t Visited – Administrative Law Judge Rules”

image0031

If your business operates in more than one location, you cannot ignore this case or its implications.

Central Transport operates trucking terminals around the country. As a result of OSHA’s investigation of one facility in Massachusetts, the agency fined the company $330,800 for violations relating to powered industrial trucks. That, in and of itself, is not that remarkable. What OSHA did next, however, should cause your head to spin.

In addition to the citations and fines levied at the facility it actually inspected, an OSHA administrative law judge also ordered “enterprise-wide” abatement at the 170 nationwide facilities OSHA had not inspected. The ALJ relied on the “other appropriate relief” clause of section 10(c) of the Act to conclude that the agency has the authority to order such enterprise-wide abatement of hazards existing, “upon information and belief,” at worksites other than the location where the inspection occurred.

This opinion, which you can read in its entirety at link posted below is groundbreaking. Even though the judge downplayed the opinion’s precedential impact, OSHA has very a different take:

“Judge Baumerich’s order is significant and precedent-setting. This is the first decision by an OSHA Administrative Law Judge expressly finding that the U.S. Occupational Safety and Health Review Commission may have the authority under the OSH Act to order abatement measures beyond the specific violations identified in the citations. The department is now authorized to proceed with discovery and to demonstrate, by presenting its evidence at trial, that enterprise-wide abatement is merited on the facts of this case,” said Michael Felsen, the regional solicitor of labor for New England.


“When an employer has hazards occurring at multiple locations, common sense and reasonable worker protection law enforcement both dictate that the employer take corrective action to safeguard the health and well-being of employees at all its worksites,” said Kim Stille, OSHA’s regional administrator for New England.


If your business operates in more than one location, you cannot ignore this case or its implications. What steps can (should?) you take to minimize the risk of enterprise-wide abatement based on a one-site inspection? Think CAT — Communicate, Analyze, and Train.

Communicate and share safety issues among all locations. It appears that conventional wisdom, which stated that OSHA inspections are limited the actual facility being inspected, is out the window. As a result, if one facility is having a safety inspection, you should be sharing that issue across all your facilities, so that if OSHA comes knocking you will limit your exposure company-wide.


Analyze your safety low-hanging fruit. You will find this low-hanging fruit in two places. First and foremost, if you are not using your OSHA 300 logs as a compliance tool, you are missing a great opportunity. By tracking employee injuries, those logs tell you how employees are becoming injured, and, in turn, which safety areas need to be addressed. Secondly, you should analyze national and local trends for the areas most often cited by OSHA.


Train, train, and train some more. Your managers and supervisors are your best defense against an OSHA-related issue. They are your eyes and ears among your employees. If they don’t know what OSHA requires and how those requirements must be executed in your business, then that line of defense is leaving you exposed. It sounds trite, but with workplace safety, the proverbial ounce of prevention is really worth the pound of cure.

http://www.dol.gov/opa/media/press/osha/OSHA20152463fs.pdf
Source: This case originally appeared at Meyers Roman’s Ohio OSHA Law Blog & Workforce Magazine : http://ohiooshalaw.com/osha-now-thinks-that-it-can-cite-facilities-it-hasnt-even-visited/
Jon Hyman is a partner in the Labor & Employment practice of Meyers, Roman, Friedberg & Lewis. He is a Workforce contributing editor. Comment below or email editors@workforce.com. For more information, contact Hyman at 216-831-0042, ext. 140, or jhyman@meyersroman.com. Follow Hyman on Twitter at @JonHyman. You can also follow him on Google Plus.

 

“Substantial OSHA Penalty Increases Are Coming”

OSHA inspection-1

 

OSHA penalties are going up. EPA’s penalties are going up, too. However, while EPA penalties have been going up modestly every four years to take inflation into account, OSHA penalties have not increased in 25 years. Maximum OSHA penalties may jump as much as about 78 percent next year. For a provision quietly tucked away in budget legislation, this packs quite a punch.

The Legislative Change

On November 2, 2015, President Obama signed into law the Bipartisan Budget Act of 2015.[1] Section 701 of that legislation is the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Adjustment Act). The 2015 Adjustment Act amends the Federal Civil Penalties Inflation Adjustment Act of 1990[2] to remove the OSHA exemption to the requirement that civil monetary penalties be periodically increased to account for inflation. The amendment also changed the frequency of the inflation increases from “once every 4 years”[3] to “every year.”

In addition, the new law entitles OSHA to a single “catch up” penalty increase to account for the lack of periodic penalty increases, which “shall take effect no later than August 1, 2016.” OSHA is authorized to calculate this initial increase based on the percentage difference between the Consumer Price Index (CPI) in October 2015 and the CPI in October of the calendar year that the civil penalty was last adjusted under any different law.[4] In this instance, because OSHA penalties have not been adjusted since 1990, the catch-up penalty increase will be based on the October 1990 CPI as compared to the October 2015 CPI.

Past Efforts to Raise Maximum OSHA Penalties

Under section 17 of the Occupational Safety and Health Act of 1970 (OSH Act), OSHA penalties for “willful” or “repeat” violations have a maximum civil penalty of $70,000 but not less than $5,000 for each willful violation.[6] Penalties for “serious” violations have a maximum of $7,000 per violation. Those figures have remained static since 1990 despite repeated efforts to increase them.

For example, in 2009, a Senate bill and a House bill,[7] both entitled the Protecting America’s Workers Act, would have amended section 17 of the OSH Act with one-time maximum civil penalty increases. The $70,000 “willful” violation maximum would have been increased to $120,000 but not less than $8,000 (up from $5,000). The penalties for “serious” violations would have increased from a maximum of $7,000 to a maximum of $12,000, and penalties for “serious” violations that result in employee fatalities would have been increased to a maximum of $50,000 but not less than $20,000 for employers with more than 25 employees. The proposed legislation did not pass either House of Congress.[8] This year, updated versions of the Protecting America’s Workers Act were introduced which would make the same adjustments in penalties.[9]

After more than 25 years and extensive legislative effort, OSHA penalties are poised for a significant initial increase, due to a provision added to an appropriations bill without hearings or debate.

– See more at: http://www.natlawreview.com/article/substantial-osha-penalty-increases-are-coming#sthash.7gS1L0zq.dpuf

OSHA’s Temporary Worker Initiative: 2014 OSHA Webinar Series, Part I

Eric Conn, Chair of Epstein Becker Green’s OSHA Practice Group, presents a five-part webinar program for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.

Part I of the 2014 OSHA webinar series will focus on OSHA’s Temporary Worker Initiative, enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

If you have questions regarding this event, please contact Kiirsten Lederer at
(212) 351-4668, or
klederer@ebglaw.com.

 

Upcoming Webinars

Part II: OSHA’s Severe Violator Enforcement Program
Tuesday, June 10, 2014 at 1:00 PM – 2:00 PM (EDT)

Part III: Preparing for and Managing an OSHA Inspection
Wednesday, September 17, 2014 at 1:00 PM – 2:00 PM (EDT)

Part IV: OSHA’s Multi-Employer Worksite Policy
Thursday, November 13, 2014 at 1:00 PM – 2:00 PM (EST)

Part V: 2015 OSHA Forecast
Wednesday, December 10, 2014 at 1:00 PM – 2:00 PM (EST)

  • For additional information on OSHA-related matters, please visit Epstein Becker Green’s OSHA Law Update blog, which recently reached its 100th post milestone.

Source: OSHA Law Update Blog®

103 Years Ago, March 25, 1911, 123 Young Women Working In A Factory Never Came Home. It Changed Our Country.

Triangle Shirtwaist Factory Fire – March 25, 1911

It may not seem that the Triangle Shirtwaist factory fire, which happened over a century ago in New York City, would be relevant today — but it is. It was a tragedy that opened the nation’s eyes to poor working conditions in garment factories and other workplaces, and set in motion a historic era of labor reforms. Unfortunately, we haven’t built enough on these gains. Today, too many employers are failing to obey the labor and workplace safety laws that were enacted in the years following the tragedy. And in part because our government is not adequately enforcing these laws, workers are still needlessly losing their lives on the job. There is a lot that we can and must do to ensure that the well being of workers is put above profits.

The Triangle Shirtwaist incident is remembered for its shocking brutality: On March 25, 1911, a ferocious fire broke out at a factory on the ninth floor of a building in New York City’s Greenwich Village. Some of the exits and stairwells had been locked to prevent workers from taking breaks or stealing, leaving many unable to get out. As a result, 146 workers, mostly young immigrant women, died within 20 minutes. They were burned alive, asphyxiated by smoke or died trying to escape out of the windows and balcony.

The horrific event generated a nationwide outcry about working conditions and spurred efforts to improve standards. Activists and labor unions like the International Ladies Garment Workers Union (ILGWU) — which lost members in the fire — were at the forefront of this push for reforms. Honoring the memory of those who died is particularly important to me and others at Amalgamated Bank, which was founded by a garment worker’s union in 1923, and is now majority-owned by Workers United, the successor to all major garment worker unions, including the ILGWU.

Thanks to the efforts of the ILGWU and all who fought for workplace reforms, real changes got underway immediately; in 1911, New York State initiated the most comprehensive investigation of factory conditions in U.S. history. Their conclusions informed new standards that other states across the country replicated and built upon in subsequent years.

We’ve come a long way since the fire happened — but it’s clear we still have a long way to go.

After all, workplace safety issues are hardly a thing of the past. It seems like nearly every year, another workplace disaster happens somewhere in the United States. Like last year, when a fertilizer plant in Texas exploded, killing 14 and injuring over 160. Or in 2010, when an explosion at a West Virginia coal mine run by Massey Energy killed 29 miners and the BP Deepwater Horizon oil rig explosion left 11 workers dead and caused an enormous environmental disaster.

Thankfully, none of these events matched the human cost of the Triangle Shirtwaist fire — or the devastating factory collapse in Bangladesh last year where 1,129 people died — but they should send a similar message. No one should lose his or her life because companies are putting profit making ahead of worker protections, and because our government is not performing its critical watchdog role. Experts say that in each of the cases cited above, proper safety precautions could have prevented the devastating accidents.

But companies are not consistent in their practices of adhering to worker safety precautions. So it’s up to us — through pressure on our government and strategically exercising our rights as consumers and shareholders — to ensure that the right rules are in place and that companies play by them.

This issue of worker safety is of particular concern for undocumented workers who often receive the worst treatment of all. While working in some of our most physically demanding and low-paying jobs — from construction to landscaping, and from housekeeping to daycare and nursing — many of their employers also cut corners when it comes to their safety, knowing they are less likely than other workers to stand up for their rights. Immigrants have been crucial contributors to our economy since our nation’s founding. Teenagers from Russia, Italy and Germany worked side-by-side at the Triangle Shirtwaist factory — just as immigrants from all over the world do in today’s workplaces — and it’s time we treated them with the fairness and respect they deserve.

How can we avoid these kinds of safety problems and exploitation to begin with? We can start by reinvigorating the role of unions. While unions continue to do everything they can to curb these abuses, the proportion of the workforce that is unionized has eroded dramatically since its peak in the 1950s. To ensure both safety and fairness on the job, workers need to join together on the job to improve their working conditions.

Institutional investors and other shareholders of publicly traded companies also have an important role to play. By pursuing corporate governance reforms when needed and lawsuits when companies commit serious wrongdoing, investors can spur changes from the inside out. Corporate governance actions can’t erase the tragedy, but they can help make sure companies — and their competitors — are looking out for workers going forward.

Government also needs to step up. In so many cases of workplace safety problems or worker mistreatment, there are laws on the books that just aren’t being enforced. Our elected officials need to fight for resources for workplace inspections through agencies like OSHA — which has consistently faced cuts in recent years — and ensure thorough investigations when problems are brought to their attention. For citizens, that means making our voices heard about the importance of workplace safety, and voting for elected officials who represent those views.

We can’t undo history and bring back those we’ve lost. But we can prevent others from suffering similar fates — and work to ensure both safety and fairness in the workplace — now and in the future.

Source: Keith Mestrich

Follow Keith Mestrich on Twitter: http://www.twitter.com/AmalgamatedBank

%d bloggers like this: