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“The 2017 Workplace Safety Puzzle” #OSHA #Safety

From 2015 to 2017, OSHA fines increased almost 80%, making the cost of noncompliance too expensive for most organizations to ignore.

This new infographic, created for the 2017 Safety Summit, aims to help safety pros, like you, strengthen compliance, reduce costs, and improve operational efficiency.

 

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“OSHA Announces Feral Cats Are Not Vermin”

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On October 4, 2016, the Occupational Safety and Health Administration issued a press release and announced that it was proposing changes to 18 separate regulations “as part of an ongoing effort to revise provisions in its standards that may be confusing, outdated or unnecessary.

The proposals run across a wide spectrum from the technical (i.e., allowing ex-rays to be maintained in digital format); to the procedural (i.e., making the process safety management standard the same for construction and general industry); to the completely understandable (i.e., eliminating any uses of employee social security numbers in exposure monitoring); to the somewhat odd (i.e., eliminating feral cats from the definition of “vermin” in the shipyard equipment regulation).

On the last point, the agency press release noted that “OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term ‘feral cats’ from the definition of vermin in the standard.”  The deadline for submitting comments to any of the proposals is December 5, 2016.

OSHA’s Standards Improvement Project, Proposed Revisions
October 2016

Reporting job-related hearing loss

OSHA recordkeeping regulations require employers to record and report occupational injuries and illnesses. The proposed revision codifies current enforcement policy and clarifies that a determination whether an employee’s hearing loss is “work-related” must be made using specific, clear criteria, which are also set out in OSHA regulations.

Control of Hazardous Energy (Lockout/Tagout)

The proposed revision clarifies employers’ duties under the lockout/tagout standard. The existing general industry standard requires protections against the “unexpected energization” of machinery during servicing. The proposed revision to remove the term “unexpected” reflects OSHA’s original intent and eliminates confusion regarding applicability of the standard.

Chest X-Ray (CXR) Requirements

The proposed revision removes the requirement for periodic CXR in the standards for inorganic arsenic, coke oven emissions, and acrylonitrile to make OSHA’s requirement consistent with current medical practices and reduce employer burden and paperwork.

X-Ray Storage

The proposed revision permits storage of x-rays in digital formats. OSHA adopted the existing requirement for storage of x-ray film before the existence of digital x-ray and storage technology.

Lung-function testing

The proposed revisions update the lung-function testing (spirometry) requirements for the cotton dust standard to make them consistent with current medical practices and technology.

Feral Cats

Existing requirements in the sanitation standard for Shipyard Employment specify that employers must maintain workplaces in a manner that prevents vermin infestation. OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term “feral cats” from the definition of vermin in the standard.

911 Emergency Services at Worksites

Existing construction regulations require employers to conspicuously post telephone numbers for ambulances, etc. at worksites located in areas where 911 emergency dispatch services are not available. The proposed revision updates this requirement to reflect the predominance of the use of cellular telephones at construction sites and the widespread adoption of 911 emergency dispatch services. The proposed revision requires the posting of location information at worksites in areas that do not have Enhanced 911 (which automatically supplies the caller’s location information to the dispatcher).

Permissible Exposure Limits (PELs)

The proposed revisions to the construction PELs requirements are corrections and clarifications to make this standard consistent with other OSHA PELs standards.

Process Safety Management of Highly Hazardous Chemicals

To avoid unnecessary duplication, OSHA proposes to replace the entire thirty-one pages of regulatory text for the Process Safety Management of Highly Hazardous Chemicals (PSM) Standard for construction with a cross reference to the identical general industry standard.

Personal Protective Equipment

Ensuring that personal protective equipment (PPE) properly fits each employee is essential to employees’ protection. The proposed revision to require employers to select PPE that properly fits each employee clarifies the construction PPE requirements and makes them consistent with general industry requirements.

Lanyard/lifeline Break Strength

The proposed revision standardizes break-strength requirements for lanyards and lifelines throughout the construction and general industry standards.

Manual on Uniform Traffic Control Devices (MUTCD)

The proposed revisions update and clarify the provisions related to traffic signs and devices, flaggers, and barricades to align with current DOT requirements. This removes the burden on construction employers, who have sought this change, to follow multiple sets of regulations for OSHA, DOT, and state and local governments.

Load Limit Postings

The proposed revision exempts single family dwellings from a requirement to post maximum safe-load limits for floors in buildings under construction, reducing a burden for residential builders. The existing OSHA standard requires posting in residential dwellings where safe-load limits are rarely, if ever, an issue, thus eliminating a paperwork burden for construction employers.

Excavation Hazards

The proposed revision clarifies employers’ duties in the excavation standard. The proposed revision clarifies that a hazard is presumed to exist when loose rock or soil and excavated material or equipment is beside a trench.

MSHA Underground Construction – Diesel Engines

Existing regulatory language requires that mobile diesel-powered equipment used underground comply with outdated Mine Safety Health Administration’s (MSHA) provisions. The proposed revision updates the regulatory language to cross-reference to the revised MSHA provisions.

Underground Construction

The proposed revision replaces outdated decompression tables used to protect employees working in pressurized underground construction sites. The proposal allows employers to use the modern French decompression tables.

Rollover Protective Structures

The proposed revision replaces the outdated construction standard with references to the appropriate consensus standards.

Regulation of coke oven emissions in construction

The proposed revision removes the regulation of coke oven emissions provisions from the construction standards. Any work during operation of coke ovens is general industry work, and the standard does not fit construction work.

Collection of Social Security Numbers

The proposed revision comprehensively removes from general industry, construction, and maritime standards all requirements to include an employee’s social security number on exposure monitoring, medical surveillance, and other records in order to protect employee privacy and prevent identity fraud.

For more information, read the news release.

“OSHA Respiratory Protection Standard To Add Two Additional Fit-Testing Protocols”

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U.S. Department of Labor
Occupational Safety and Health Administration
Office of Communications
Washington, D.C.
www.osha.gov
For Immediate Release

 

October 6, 2016
Contact: Office of Communications
Phone: 202-693-1999

OSHA proposes to amend respiratory protection standard to add
two additional fit-testing protocols

WASHINGTON – The Occupational Safety and Health Administration today issued a Notice of Proposed Rulemaking to add two quantitative fit-testing protocols to the agency’s Respiratory Protection Standard. The protocols would apply to employers in the general, shipyard and construction industries.

Appendix A of the standard contains mandatory respirator fit-testing methods that employers must use to ensure their employees’ respirators fit properly and protect the wearer. The standard also allows individuals to submit new fit-test protocols for OSHA approval. TSI Incorporated submitted an application for new protocols for full-facepiece and half-mask elastomeric respirators, and filtering facepiece respirators.

The existing standard contains mandatory testing methods to ensure that employees’ respirators fit properly and are protective. The standard also states that additional fit-test protocols may be submitted for OSHA approval. TSI Incorporated submitted an application for new protocols for full-facepiece and half-mask elastomeric respirators, and filtering facepiece respirators. The proposed protocols are variations of the existing OSHA-accepted PortaCount® protocol, but differ from it by the exercise sets, exercise duration, and sampling sequence.

The agency invites the public to comment on the accuracy and reliability of the proposed protocols, their effectiveness in detecting respirator leakage, and their usefulness in selecting respirators that will protect employees from airborne contaminants in the workplace. More specific issues for public comment are listed in the Federal Register notice.

Individuals may submit comments electronically at www.regulations.gov, the Federal e-Rulemaking Portal. Comments may also be submitted by mail or facsimile; see the Federal Register notice for details. The deadline for submitting comments is Dec. 6, 2016.

This proposed rulemaking would allow employers greater flexibility in choosing fit-testing methods for employees. The proposed rule would not require an employer to update or replace current fit-testing methods, as long as the fit-testing method(s) currently in use meet existing standards. The proposal also would not impose additional costs on any private- or public-sector entity.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

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U.S. Department of Labor news materials are accessible at http://www.dol.gov. The department’s Reasonable Accommodation Resource Center converts departmental information and documents into alternative formats, which include Braille and large print. For alternative format requests, please contact the department at (202) 693-7828 (voice) or (800) 877-8339 (federal relay).

“Regulated Industry Successfully Challenges New OSHA Process Safety Management Enforcement Policies”

On September 23, 2016, the D.C. Court of Appeals ruled that the Occupational Safety and Health Administration (OSHA) wrongfully adopted new safety requirements for fertilizer dealers who have to comply with the Process Safety Management Standard. Specifically, OSHA improperly issued a memorandum redefining the “retail facility” exemption and did not allow fertilizer dealers to comment on the new rules.

OSHA has promulgated a Process Safety Management (PSM) standard that implements certain requirements for employers to protect the safety of those who work with or near highly hazardous chemicals, and help prevent unexpected releases of such chemicals. Traditionally, retail establishments do not have to comply with the PSM standard because hazardous chemicals are present only in small volumes in such instances.

Following a 2013 explosion at a West Texas Fertilizer facility (videos above) that left 15 people dead after a large amount of ammonium nitrate caught fire, OSHA issued an enforcement memorandum expanding the scope of the PSM standard to cover more retail establishments, including agricultural dealers who sell anhydrous ammonia to farmers. Yet OSHA did this without requesting comments from the public or industry.

Working with legal counsel, the Agricultural Retailers Association (ARA) and The Fertilizer Institute organized a successful lawsuit challenging the new rule. The D.C. Court of Appeals ruled that OSHA violated the Occupational Safety and Health Act when it issued the enforcement memorandum, finding that OSHA had engaged in rulemaking, and was thus bound to solicit comments from the public and industry. As a result of the successful lawsuit, ag retailers do not have to comply with the PSM standard until OSHA receives comments from the public and industry regarding the proposed changes to the PSM standard, which could take several years to finalize.

Commenting on the decision, Harold Cooper, chairman of the ARA, said that “[a]s an industry, ag retailers tend to be complacent about regulations that come our way. We keep our heads down and do what’s required,” he said. “But this rule would have limited farmers’ and retailers’ options through an agency’s improper regulatory overreach. Thankfully, ARA was uniquely prepared and positioned to defend our industry. They gave us a vehicle to fight and win this battle.”

The court’s ruling will make it more difficult in the future for OSHA to issue de facto standards without undertaking proper rulemaking procedures and soliciting comments from the public. Companies should proactively work with skilled legal counsel who can assist on rulemaking processes that impact workplace health and safety.

Source: 9/27/2016 by Daniel BirnbaumMichael Taylor  | BakerHostetler

 

 

 

 

 

“OSHA Responds to Manufacturers’ Lawsuit on New Workplace Injury and Illness Reporting Rule”

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By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: OSHA asserts that its new injury illness reporting rule is fully within OSHA’s mandate.

This is in follow-up to our earlier blog on OSHA’s new rule, Improve Tracking of Workplace Injuries and Illnesses (Rule), 81 Fed. Reg. 29624 (May 12, 2016). The new rule concerned drug-testing, retaliation claims, and accident reporting.

The National Association of Manufacturers filed a lawsuit seeking to enjoin the new rule. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016). Thereafter OSHA announced that it was delaying the effective date for enforcement of the rule until November 1, 2016.

In TEXO ABC/AGC the Plaintiffs alleged that OSHA is “putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation.” The lawsuit sought a declaratory judgment finding that the rule was unlawful to the extent that it prohibited or otherwise limited incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs.

On August 19, 2016 OSHA responded to the request for a preliminary injunction, filing its opposition. OSHA argues that as the “Plaintiffs have not established a likelihood of success or irreparable harm, the Court need not consider the balance of equities or public interest. Even if it did, though, they tip sharply against injunctive relief in this case. Plaintiffs have established no harm at all, much less irreparable harm. OSHA, by contrast, has determined that the anti-retaliation provision is necessary for the viability of its broader recordkeeping Rule, which takes effect January 1, 2017.”

We anticipate that the Plaintiffs will file a reply brief shortly, followed by oral arguments before the Court. We will keep you updated as this fast moving issue develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 Source: Seyfarth Shaw LLP

“Tree Care Industry Safety Raises OSHA Concerns”

By Bruce Rolfsen

July 13 — An OSHA rule covering the tree care and trimming industry may have to cover a wide expanse of hazards—from falling tree branches to insect bites to broken aerial lifts to pesticides—agency officials were told July 13 during a meeting with industry representatives.

The stakeholders meeting was the latest step in the Occupational Safety and Health Administration’s move to restart a rulemaking focused on protecting workers who cut and trim trees (81 Fed. Reg. 38,117).

While OSHA has regulations focused on logging, the agency doesn’t have specific rules for most types of tree trimming.

William Perry, head of OSHA’s Directorate of Standards and Guidance, said that the agency hasn’t yet set a timeline for pursuing the rule. OSHA is still in an information-gathering phase and needs to determine if a tree care rule would trigger a Small Business Regulatory Enforcement Fairness Act review.

While many in the audience might favor OSHA simply adopting the voluntary American National Standards Institute consensus tree-trimming standard (ANSI Z133-2012), the agency can’t adopt the standard as is, Perry said.

OSHA administrators David Michaels told about three dozen people attending the day-long session that the rule should be “common sense” and “usable by employers.”

Often workers injured in tree-trimming accidents had little training or protective equipment and if training was offered, it may not have been in a language they spoke, Michaels said.

Industry Support

Most of the people attending the meeting, favored OSHA’s pursuit of a rule.

Mark Gavin, president of the Tree Care Industry Association, said many lawmakers were surprised that the association came to them seeking support for the tree care rule.

OSHA in 2008, at the urging of the association, initiated a tree trimming rulemaking (73 Fed. Reg. 54,118) then set the project aside in 2010. The agency resurrected the rulemaking (RIN:1218-AD04) in 2015.

Peter Gerstenberger, the association’s safety director, said that from 2009 through 2013 there had been 408 tree care fatalities. Falls and being hit by tumbling branches are the most dangerous risks for workers in aerial buckets or climbing.

On the ground, workers are most at risk from falling trees and branches, however power tools such as chainsaws and chippers were also a hazard, Gerstenberger said

Participants said many of the deaths among workers on the ground were attributable to a lack of training and safety precautions, such as not allowing workers under a tree and inside a tree’s potential fall zone while trimming was taking place.

John Sullivan, a safety official with Lewis Tree Service, said that when he joined the company several years ago it was common for workers to be under trees while cutting was going on. Since then, the culture of the company changed to discourage workers from being under trees and now drop zones are marked with orange cones.

Representatives from the large tree care companies such as Asplundh Tree Expert Co. and Carolina Tree Care said their safety practices call for hazard analysis and team meetings before work on trees begins.

The industry’s challenge is that while large companies and many small employers have safety protocols, others treat tree work as an unskilled task, representatives said. For example, companies hand workers chainsaws without on-the-job safety training or expect workers to climb a dead or rotting tree.

To contact the reporter on this story: Bruce Rolfsen in Washington atbrolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl atlpearl@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

“OSHA Penalties To Be Adjusted For Inflation After August 1, 2016”

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Maximum penalties for OSHA violations are set to increase for the first time since 1990 as part of overall federal penalty adjustments mandated by Congress last year. The increases were announced Thursday by the Department of Labor, which issued two interim rules covering penalty adjustments for several DOL agencies, including OSHA, the Mine Safety and Health Administration and Wage and Hour Division.

OSHA’s new penalty levels will take effect after Aug. 1, when the maximum penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709. Any citations issued by OSHA after Aug. 1 will be subject to the new penalties if the related violations occurred after November 2, 2015. OSHA will provide guidance to field staff on the implementation of the new penalties by Aug. 1.

OSHA Penalty Adjustments to Take Effect August 2016

In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. The Department of Labor is adjusting penalties for its agencies, including the Occupational Safety and Health Administration (OSHA).

OSHA’s maximum penalties, which were last adjusted in 1990, will increase by 78%. Going forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index.

The new penalties will take effect after August 1, 2016.  Any citations issued by OSHA after that date will be subject to the new penalties if the related violations occurred after November 2, 2015.

Type of Violation  Current Maximum Penalty New Maximum Penalty
Serious
Other-Than-Serious
Posting Requirements
$7,000 per violation $12,471 per violation
Failure to Abate $7,000 per day beyond the abatement date $12,471 per day beyond the abatement date
Willful or Repeated $70,000 per violation $124,709 per violation

Adjustments to Penalties

To provide guidance to field staff on the implementation of the new penalties, OSHA will issue revisions to its Field Operations Manual by August 1. To address the impact of these penalty increases on smaller businesses, OSHA will continue to provide penalty reductions based on the size of the employer and other factors.

State Plan States

States that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA’s.

For More Assistance

OSHA offers a variety of options for employers looking for compliance assistance.

The On-site Consultation Program provides professional, high-quality, individualized assistance to small businesses at no cost.

OSHA also has compliance assistance specialists in most of our 85 Area Offices across the nation who provide robust outreach and education programs for employers and workers.

For more information, please contact the Regional or Area Office nearest you.

U.S. Department of Labor | June 30, 2016

US Department of Labor announces new rules to adjust civil penalty amounts

WASHINGTON – In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. The new law directs agencies to adjust their penalties for inflation each year using a much more straightforward method than previously available, and requires agencies to publish “catch up” rules this summer to make up for lost time since the last adjustments.

As a result, the U.S. Department of Labor announced today two interim final rules to adjust its penalties for inflation based on the last time each penalty was increased.

“Civil penalties should be a credible deterrent that influences behavior far and wide,” said U.S. Secretary of Labor Thomas E. Perez. “Adjusting our penalties to keep pace with the cost of living can lead to significant benefits for workers and can level the playing field responsible employers who should not have to compete with those who don’t follow the law.”

The first rule will cover the vast majority of penalties assessed by the department’s Employee Benefits Security Administration, Mine Safety and Health Administration, Occupational Safety and Health Administration, Office of Workers’ Compensation Programs, and Wage and Hour Division. The second rule will be issued jointly with the Department of Homeland Security to adjust penalties associated with the H-2B temporary guest worker program.

Under the 2015 law, agencies are directed to publish interim final rules by July 1, 2016. The department will accept public comments for 45 days to inform the publication of any final rule.

The new method will adjust penalties for inflation, though the amount of the increase is capped at 150 percent of the existing penalty amount. The baseline is the last increase other than for inflation. The new civil penalty amounts are applicable only to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015.

The rules published under the 2015 law will modernize some penalties that have long lost ground to inflation:

  • OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78 percent. The top penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.
  • OWCP’s penalty for failure to report termination of payments made under the Longshore and Harbor Workers’ Compensation Act, has only increased $10 since 1927, and will rise from $110 to $275.
  • WHD’s penalty for willful violations of the minimum wage and overtime provisions of the Fair Labor Standards Act will increase from $1,100 to $1,894.

A Fact Sheet on the Labor Department’s interim rule is available here. A list of each agency’s individual penalty adjustments is available here.

# # #

Media Contact:

Amy Louviere, 202-693-9423, louviere.amy@dol.gov

Release Number: 16-1380-NAT


U.S. Department of Labor news materials are accessible at http://www.dol.gov. The department’s Reasonable Accommodation Resource Center converts departmental information and documents into alternative formats, which include Braille and large print. For alternative format requests, please contact the department at (202) 693-7828 (voice) or (800) 877-8339 (federal relay).

“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

“RMP Changes Are Almost Here, Stay A Step Ahead”

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By Timothy P Fagan, Senior Legal Editor

It has been 3 years since the ammonium nitrate explosion in West, Texas, killed 15 people, injured hundreds, and caused widespread damage.  Just a few months after that event, President Obama’s Executive Order (EO) 13650 set into motion actions by numerous government agencies designed to enhance the safety and security of chemical facilities and reduce the risks that hazardous chemicals pose to owners and operators, workers, and communities.

In addition to enhancing cooperation and information sharing among federal agencies and state and local authorities, the activities stemming from EO 13650 included modernizing key regulations, such as U.S. Environmental Protection Agency’s (EPA) Risk Management Program (RMP) and OSHA’s Process Safety Management (PSM) Program.  To that end, the EPA recently proposed amendments to RMP regulations under 40 CFR 68, and the Occupational Safety and Health Administration (OSHA) has made policy changes with respect to PSM that will impact how facilities comply with the RMP.

What changes are coming?

The changes to RMP regulations being proposed by the EPA impact the implementation of release prevention programs, the development of emergency response plans, and the sharing of information.

Release prevention programs.  The proposed changes to the accidental release prevention programs include:

  • Requiring all facilities with Program Level 2 or 3 processes to conduct root cause analyses as part of any incident investigation of a catastrophic release or a “near miss.” Identifying the root cause rather than the immediate cause will be more beneficial in preventing similar accidents in the future.
  • Requiring all facilities with Program Level 2 or 3 processes to hire an independent third party to perform a compliance audit after the facility has a reportable release.  Currently, such audits are self-audits, so requiring a third party increases the objectivity of the audit.
  • Requiring facilities in the paper manufacturing, petroleum and coal products manufacturing, and chemical manufacturing sectors with Program 3 processes to conduct a safer technology and alternatives analysis (STAA) as part of the process hazard analysis that must be updated every 5 years.  The facilities must then evaluate the feasibility of any inherently safer technology (IST) identified in the STAA.   The implementation of IST potentially reduces the risk of accidental releases within these industries, which the EPA has identified as having a disproportionate share of reportable releases.

Emergency response plans.  The proposed changes to emergency response plans include:

  • Requiring all facilities with Program Level 2 or 3 processes to coordinate with the local emergency response agencies at least once a year to ensure that resources and capabilities are in place to respond to an accidental release and to ensure that emergency contact information is up to date.  Effective coordination and communication between facilities and emergency responders can reduce the severity of accidental chemical releases.
  • Requiring all facilities with Program Level 2 or 3 processes that have developed their own emergency response plan to conduct a full field exercise at least once every 5 years and one tabletop exercise annually in the other years.   In addition, such facilities that have a reportable accident would be required to conduct a full field exercise within 1 year of the accident.  Such exercises will help ensure that all emergency response personnel understand their roles and responsibilities and be better prepared in the event of a real accident.

Access to information.  The proposed changes to accessing RMP information include:

  • Requiring RMP facilities to provide certain basic information to the public through easily accessible means such as a facility website.  If no website exists, the owner or operator may provide the information at public libraries or government offices or use other means appropriate for particular locations and facilities.
  • Requiring RMP facilities to hold a public meeting after an RMP reportable accident.
  • Requiring certain facilities to provide, on request, local emergency response agencies with summaries of audits, emergency response exercises, investigation reports, and implemented ISTs.
The surprising omission

After the issuance of EO 13650, there was significant speculation that the modernization of RMP regulations would involve additions to the listed chemicals regulated under 40 CFR 68 and a reevaluation of the thresholds at which chemicals became subject to the RMP.  However, the EPA opted not to regulate any additional chemicals under the RMP, nor did the agency change any of the thresholds as part of the recently released proposed regulations.

OSHA’s impact on RMP

Any RMP process that is subject to OSHA’s PSM must comply with Program Level 3 requirements, the most stringent requirements.  Last year OSHA revised its interpretation of the PSM standard’s retail facility exemption, which will result in thousands of facilities no longer being exempt from PSM.  Most of these facilities are already subject to the RMP under Program Level 2, but the change in the exemption interpretation will result in these facilities becoming Program Level 3 facilities.  OSHA will begin enforcing the new exemption interpretation on September 30, 2016, and the EPA will require risk management plan updates within the following 6 months.

What happens next?

For several years there has been speculation about what changes would be made to RMP regulations and how facilities would be impacted.  Now the proposed regulations are here, and facilities must begin the evaluation process.  Facilities must evaluate the proposed regulations and provide comments to the EPA, if necessary, and facilities must evaluate their own programs, procedures, and plans to determine what changes must be implemented to ensure continued compliance with a changing RMP.

“Are You Meeting This OSHA Requirement? – “Are You Training Your Employees In A Language That They Understand?”

screenshot-www osha gov 2016-04-07 17-10-52

In order for your Environmental and Health Safety (EHS) training to be effective, you must have clear communication with trainees. This goal may be hard to achieve with workers who speak English as a second language (ESL).

However, the Occupational Safety and Health Administration (OSHA) says that an employer’s responsibility to provide employees with information and training about safety and health hazards doesn’t go away because an employee can’t understand standard English-language training programs. When that is the case, employers must inform and train these workers in a language they can understand.

“As a general matter, employers are expected to realize that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level or in a language other than English, they will also need to provide training to employees in the same manner,” says OSHA.

Serious Training Violations

OSHA’s training provisions contain a variety of specific requirements to ensure that employees are comprehending instruction. For example, standards covering lockout/tagout, respiratory protection, and bloodborne pathogens each require that employers take measures to ascertain the level to which the employee has comprehended the safety provisions.

In its instructions to inspectors, OSHA states, “If a reasonable person would conclude that the employer had not conveyed the training to its employees in a manner they were capable of understanding, then the violation may be cited as serious.”

Enhancing Comprehension

Although Spanish is the most common second language spoken in the United States, there are many other languages ESL workers might speak, including:

  • Chinese
  • Arabic
  • Vietnamese and Cambodian
  • Various African languages
  • Portuguese
  • French

Take these steps to make sure your training message is understood by ESL workers.

  • Speak slowly, explain fully, and repeat important points several times.
  • Choose the simplest words and avoid technical jargon. If you must use technical terms, explain them in simple terms.
  • Use a translator if appropriate.
  • Demonstrate while you speak, and use visual aids, such as pictures and props, to supplement your words.
  • Encourage participation. Be patient and help employees express their thoughts and questions.
  • Have employees practice new skills during the training session so that you can see if they’ve understood.
  • Use feedback to confirm comprehension. Allow extra time for questions.
  • Provide handouts in the language(s) trainees speak and read.
  • Follow up on the job to make sure that employees correctly apply what they learned.
The language barrier may be only part of the problem when training ESL workers.
Cultural differences can also affect communication. In many foreign cultures, for example, older people are treated with great respect and deference, whereas in the more casual North American culture, older people might be treated with more familiarity. For example, older Hispanic workers might be offended if they are addressed by their first name, preferring to be called “Señor” or “Señora.”
Updated Guidance from OSHA

In August 2015, OSHA posted a fully updated version of its guide to all OSHA training requirements. The document, Training Requirements in OSHA Standards, organizes the training requirements into five categories: General Industry, Maritime, Construction, Agriculture, and Federal Employee Programs.

Training Resources in Spanish Language

OSHA Sources

Non-OSHA Sources

Announcements

To find outreach training in Spanish, visit the Spanish Outreach Trainers listing. If you’re an outreach trainer who conducts the training in Spanish and you want your name added to the list, send the following information to outreach@dol.gov:

  • Name
  • Construction and/or General Industry
  • Company/Organization, if applicable
  • City/state
  • Phone
  • E-mail and/or website address, if applicable

Trainer Training

Etiquetas de Seguridad Industrial PVT-165-Q Bilingual Safety Tags, Lockout Tagout, Panduit

Somos Distribuidores y manejamos todos los productos para Candadeo y Tarjeteo para Seguridad Industrial (Lockout Tagout), si usted require alguno de estos productos o require algun apoyo técnico, pongase en contacto con nosotros:

Distribuidor: INNOVATIVE TRADE CENTER, Calle Tecoripa # 2. Fracc. Sandoval La Mesa C.P. 22105 Tijuana, Baja California, Mexico.Tels: (664) 621-30-09 y (664) 621-37-36, E-mails: ventas@innovative.com.mx, soporte@innovative.com.mx, http://www.innovative.com.mx

  • Sources: OSHA & BLR
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