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“What Should You Do When OSHA Shows Up At Your Door” #OSHA #Inspection

osha-jacket-850x476

1/27/2017 by Krista Sterken  | Foley & Lardner LLP

You arrive at work bright and early, only to find that someone beat you there — OSHA is waiting to perform an inspection. Now what? Many employers think they have little say in what happens next. Actually, employers have many choices to make, starting as soon as OSHA arrives.

The first thing step is simply bringing the compliance officer to a conference room or other appropriate location. You should select a location that is private and located close to the entrance, so you do not have to walk the compliance officer through any more of your facility than necessary. If the compliance officer happens to see something that may be a violation, this could provide the basis for a citation and/or expansion of the inspection.

Next, it is time to collect some information — you need to understand why OSHA is there. There are three main types of inspections: complaint inspections (conducted in response to a safety complaint), report inspections (conducted in response to a report of an employee death, injury, or illness), and program inspections (conducted under one of OSHA’s emphasis programs, which focus on particular industries or hazards). In some cases, a previous citation might provide the basis for a follow-up inspection.

You also need to know what OSHA intends to do. The inspection should be tailored to the reason for the visit. For example, a complaint inspection should be limited to areas related to the complaint. Program inspections are dictated by the focus of the program — you can obtain more information from OSHA’s website. All inspections should follow OSHA’s Field Operations Manual.

Finally, you must decide whether to agree to OSHA’s inspection plan. If OSHA identified a legitimate basis for the inspection and an appropriate inspection plan, then you might decide to allow the inspection to begin. However, if you have concerns, you have the right to refuse entry and require OSHA to return with a warrant (unless there is an imminent danger, in which case OSHA must be permitted immediate entry). If you require a warrant, OSHA will have to persuade a judge that its intended inspection is appropriate.

Employers are often nervous about requiring a warrant. However, you have the right to do so. OSHA understands this, and is not permitted to retaliate against you in any way. Requiring a warrant can be an effective way to impose fair parameters for the inspection.

Once the inspection has started, you are only at the very beginning of the process. Because there will be countless other important decisions, involve counsel early (preferably, as soon as OSHA arrives). Every company should also give some advance thought to its “OSHA plan,” identifying specifically how a request for inspection will be handled long before a compliance officer shows up on the company’s doorstep.

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“Top 10 OSHA Citations of 2016: A Starting Point for Workplace Safety”

OSHAupdate

Every October, the Department of Labor’s Occupational Safety and Health Administration releases a preliminary list of the 10 most frequently cited safety and health violations for the 2016 fiscal year, compiled from nearly 32,000 inspections of workplaces by federal OSHA staff.

One remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.

More than 4,500 workers are killed on the job every year, and approximately 3 million are injured, despite the fact that by law, employers are responsible for providing safe and healthful workplaces for their workers. If all employers simply corrected the top 10 hazards, we are confident the number of deaths, amputations and hospitalizations would drastically decline.

Consider this 2016 list a starting point for workplace safety:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

It’s no coincidence that falls are among the leading causes of worker deaths, particularly in construction, and our top 10 list features lack of fall protection as well as ladder and scaffold safety issues. We know how to protect workers from falls, and have an ongoing campaign to inform employers and workers about these measures. Employers must take these issues seriously.

We also see far too many workers killed or gruesomely injured when machinery starts up suddenly while being repaired, or hands and fingers are exposed to moving parts. Lockout/tagout and machine guarding violations are often the culprit here. Proper lockout/tagout procedures ensure that machines are powered off and can’t be turned on while someone is working on them. And installing guards to keep hands, feet and other appendages away from moving machinery prevents amputations and worse.

Respiratory protection is essential for preventing long term and sometimes fatal health problems associated with breathing in asbestos, silica or a host of other toxic substances. But we can see from our list of violations that not nearly enough employers are providing this needed protection and training.

The high number of fatalities associated with forklifts, and high number of violations for powered industrial trucksafety, tell us that many workers are not being properly trained to safely drive these kinds of potentially hazardous equipment.

Rounding out the top 10 list are violations related to electrical safety, an area where the dangers are well-known.

Our list of top violations is far from comprehensive. OSHA regulations cover a wide range of hazards, all of which imperil worker health and safety. And we urge employers to go beyond the minimal requirements to create a culture of safety at work, which has been shown to reduce costs, raise productivity and improve morale. To help them, we have released new recommendations for creating a safety and health program at their workplaces.

We have many additional resources, including a wealth of information on our website and our free and confidential On-site Consultation Program. But tackling the most common hazards is a good place to start saving workers’ lives and limbs.

Thomas Galassi is the director of enforcement programs for OSHA.

“OSHA’s Wall Of Shame – With Limited Staff, Agency Targets “Severe Violators”

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Source: FairWarning.org – By Paul Feldman and Stuart Silverstein

Soon after beginning their cleanup of a fume-filled tanker car at an Omaha, Nebraska rail maintenance yard, Adrian LaPour and Dallas Foulk were dead.

An explosion that April 2015 afternoon trapped LaPour in a flash fire inside the car and hurled Foulk out the top to his death.

Six months later their employer, Nebraska Railcar Cleaning Services, was hammered by the U.S. Occupational Safety and Health Administration with seven citations for “egregious, willful” workplace violations, along with 26 other charges. The agency proposed fines of nearly $1 million. To top it off, OSHA announced that it was tossing the company into its Severe Violator Enforcement Program, or SVEP.

Six years into the severe violator program – arguably the broadest workplace safety initiative launched during the Obama administration – more than 500 businesses are on its list of bad actors. They include corporate giants such as DuPont and International Paper, each with tens of thousands of employees, as well as more than 300 construction firms, many with fewer than a dozen workers.

Just last week an auto parts maker in Alabama, Ajiin USA, was labeled a severe violator and hit with proposed fines of $2.5 million related to the June death of a 20-year old worker. Regina Allen Elsea, who was two weeks away from getting married, was crushed when a robotic machine she was doing maintenance on abruptly restarted. Ajiin, which supplies automakers Kia and Hyundai, said in a statement it will continue to cooperate with OSHA and that “safety has always been our guiding principle.”

Along with subjecting employers to a form of public shaming, the severe violator program helps OSHA work out settlements intended to force companies to clean up their job safety practices. The program, which replaced a George W. Bush administration initiative that an inspector general’s audit derided as ineffectual, also can result in extra inspections, sometimes at multiple sites, and force companies to hire new safety personnel. The effort, though, faces an uncertain future under the Trump administration.

The severe violator list represents an attempt to deal with an overwhelming regulatory challenge. With OSHA and its state counterparts relying on fewer than 1,850 inspectors to monitor about 8 million workplaces, it would take federal officials 145 years to inspect each job site once, union researchers estimate. The aim of the list is to let OSHA’s limited staff zero in on some of the worst offenders.

David Michaels, the assistant secretary of labor in charge of OSHA, said in an interview with FairWarning that “even if we doubled our inspectors, we would still be able to only get to a small portion of employers. And so we need tools like SVEP, which extend our capabilities and encourage more employers to do the right thing even without inspections.”

But the targeted nature of the program creates a Catch-22. The death of a worker is clearly the worst thing that can happen at a job site. Yet with about 4,800 workplace fatalities a year nationally, putting every company with a death on the severe violator list would overwhelm OSHA and defeat the goal of tougher enforcement for a subset of the worst offenders. For that reason, the death of a worker will put a company on the list only if the circumstances are particularly flagrant or reflect a pattern of reckless conduct. In 2015 only one out of every roughly 200 employers with an on-the-job fatality landed on the list.

At the same time, it’s not certain that the program has effectively deterred recalcitrant employers, as OSHA lacks any comprehensive assessment of its performance. For evidence of the impact, OSHA officials point to settlements they have reached with companies on the list. “There hasn’t been a really good objective evaluation,” said MIT Professor Thomas A. Kochan, co-director of MIT’s Institute for Work and Employment Research.

One critic, John Newquist, (a LinkedIn connection of mine) and former OSHA official in Chicago, said his sense is that among employers, “There’s no fear of OSHA at all.”

Michaels, who will leave the agency by the January 20, 2017, presidential inauguration, expressed hope that the Trump administration won’t dismantle the severe violator effort or other enforcement initiatives. He said tough enforcement protects responsible employers because it “levels the playing field” between them and competitors who skimp on safety. Still, the anti-regulation views of Trump cabinet picks including Andrew Puzder, the president-elect’s choice for labor secretary, are raising expectations of cutbacks in workplace enforcement.

Nebraska Railcar –- currently the target, several sources say, of a Justice Department criminal investigation of last year’s explosion –- highlights how long it can take a wayward company to be put into the severe violator program. Jacob Mack, who worked for the company in 2013, says he told OSHA about brutal conditions long before the deadly blast. “Not a day goes by I don’t remember the hell there,” Mack said.

The company wasn’t listed until after the explosion even though it, as well as other businesses controlled by Nebraska Railcar’s majority owner, Steven Braithwaite, had repeatedly been cited by OSHA dating back to 2005. That includes a 2013 citation involving a fire risk from oil storage tanks. Nebraska Railcar stayed off the list, though, partly because its prior violations didn’t involve hazards the agency deemed high-priority, such as falls, amputations, cave-ins and exposure to toxic chemicals.

(Nebraska Railcar is contesting its current OSHA citations, as are other companies cited in this story that haven’t reached a settlement with the agency. Nebraska Railcar and most of the other companies have not responded to requests for comment.)

Case Farms, a leading poultry processor with plants in Ohio and North Carolina, finally landed on the list in 2015 after being cited for more than 350 violations over a 25-year period, according to OSHA. The case, which processes nearly 3 million chickens a week for fast food chains and supermarkets, last year was fined $861,500 for 55 violations, including amputation and fall hazards, at its Winesburg, Ohio, plant.

Sometimes disaster has struck even after companies were put in the program. One such case, in October, spurred a public outcry in Boston. Two laborers working for Atlantic Drain Service died after being trapped in a trench that was inundated by water, dirt, and debris after a pipe burst. Atlantic Drain had been on the severe violator list since 2012.

The October deaths “were entirely preventable,” The Boston Globe wrote in an editorial, “had city and state officials taken minimal steps to investigate the construction company before issuing permits.”

Whatever the shortcomings of the severe violator program, labor advocates say, the wide range of companies it snares -– and the number and gravity of their violations -– underscore its importance and the need to protect workers from callous bosses. OSHA’s other options are limited. The agency lacks the authority to shut down dangerous workplaces and its fines generally remain modest despite an increase that took effect in August.

“OSHA is one-eighth the size of the EPA, it has the lowest penalties of almost any government agency – but even though it is small, it is critical that enforcement is maintained,” said Deborah Berkowitz, the OSHA chief of staff from 2009 to 2013. The severe violator list, she conceded, is “not an end-all tool,” but an important tool.

An example OSHA officials point to is Ashley Furniture, the nation’s largest retailer of home furnishings. It was listed last year after being cited for 38 violations, 12 of them willful, and assessed $1.76 million in fines. Inspections showed more than 1,000 work-related injuries in less than four years at its plant in Arcadia, Wisconsin.

Over 100 of the injuries took place on similar woodworking machines, including a July 2014 incident in which a worker lost three fingers. In June, the privately held firm settled the case, agreeing to pay penalties of $1.75 million and to adopt safety measures in Arcadia and at three other plants in Wisconsin and Mississippi.

Some corporate defense lawyers say being labeled a “severe violator” is such a black eye that it strongly motivates companies to avoid trouble with OSHA. However, they criticize the program for lacking due process, because companies are labeled severe violators even as they appeal citations.

“You are dumped into SVEP essentially the day that the citations are issued and a citation is nothing more than an allegation,” said Eric J. Conn, a Washington, D.C.-based attorney who specializes in OSHA defense cases. “Having the federal agency that is responsible for safety and health branding that employer as a bad actor … absolutely has significant consequences to the employer’s business.”

In the meantime, corporate lawyers say, competitors or critics can take advantage of the situation. If residents near a listed site “don’t like your company, to begin with, this is more ammunition they can use to go to a zoning board to block permits for expansion,” said Adele Abrams, a Washington, D.C.-based attorney.

On-the-job deaths can keep companies in the program for years. DuPont was listed after four workers at its La Porte, Texas, chemical plant died of asphyxiation in 2014. The disaster occurred after a supply line released more than 20,000 pounds of deadly methyl mercaptan gas. The company, which manufactures pesticides at the Texas plant, was assessed $273,000 for eight OSHA violations. DuPont said it couldn’t comment because it is appealing its case.

AMF Bowling Centers, Inc. has been on the list since 2011, when a worker at its lanes in Addison, Texas, was fatally pulled into an automatic pin-setting machine while trying to clear a jam. OSHA had previously cited AMF in 2007 and 2008 for failing to provide proper machine guarding on pinsetters. The case was settled, with AMF agreeing to pay more than $90,000 in penalties.

Oil services giant Nabors Completion and Production Services Co. was listed following the death of welder Dustin Payne, a 28-year-old former Marine who served in Iraq and Afghanistan. He was killed in a 2014 explosion when vapors ignited inside a tank he was welding in North Dakota.

Houston-based Nabors, which boasts of operating the world’s largest land-based drilling rig fleet, was assessed $97,200 in fines and charged with a willful violation for not having thoroughly cleaned the tank of oil residue before sending Payne in.

“Dustin Payne and his fiancée should be discussing marriage and their future together. Instead, she is left stricken and trying to move forward without him,” Eric Brooks, OSHA’s area director in Bismarck, N.D., said in a news release.

International Paper Co. was added to the list last year after a 57-year-old mechanic was killed in a fire while replacing filter bags in machinery at its Ticonderoga, N.Y., plant. The bags contained combustible dust that ignited.

In assessing $211,000 in fines, OSHA said the company had failed to supply fire-resistant clothing or adequate training. The firm had previously been cited for failing to conduct annual inspections of ignitable equipment at company sites in Chicago and Newark, Ohio.

Although big companies draw the most widespread attention, the employers most commonly labeled severe violators are small construction firms with high emphasis hazards related to falls or excavation cave-ins. Yet small construction firms often elude the follow-up inspections that are supposed to be a key feature of the program.

A FairWarning analysis of the current list of 523 severe violators found that 167 had not been re-inspected, and almost all were construction firms. In many cases, the firms had shut down their worksites or went out of business before inspectors could return.

Eric Frumin, safety and health director of the union coalition Change to Win, said given the way the industry operates, OSHA can be “powerless to find and vigorously confront the worst actors.”

A trench collapse last year in New York that put a construction firm on the list also led to criminal charges. The cave-in collapse in lower Manhattan buried Carlos Moncayo, 22, under tons of dirt. His employer, Sky Materials Corp. of Maspeth, was fined $140,000 and listed for willfully failing to provide cave-in protection

Last month, Sky’s site foreman was convicted of criminally negligent homicide in the death of Moncayo, one of at least 18 New York City construction workers who died on the job in 2015. The project’s general contractor, Harco Construction LLC, was convicted of manslaughter and criminally negligent homicide in June.

Deadly incidents also have brought rail tank car cleaning companies into the program. At Nebraska Railcar, the disaster came soon after the workers returned from a lunch break and started digging out thick residue from an oil tanker. The lone survivor among the three employees working on the tanker, Joe Coschka, 36, said he was just outside the car, lowering buckets of the blacktop like material into a 55-gallon drum.

Coschka said the odor from inside the tanker was powerful, and that an air monitor was beeping. Even so, he said he assumed a supervisor who should have known better than him whether the air was a hazard, should have informed workers to evacuate the tank car immediately.

Soon Coschka heard a loud hiss, and then sparks started shooting out of the tanker. The next thing he remembers is dangling from the side of the car, still attached to his safety harness, with a fire raging inside. “And I knew Adrian was in there, and Dallas was looking pretty bad on the ground. I just knew I had to get out of there,” said Coschka. He managed to scramble to safety despite suffering back and shoulder injuries.

Coschka remains haunted by the disaster. Although he sometimes blames himself for not questioning the foreman who sent the workers into the tanker car, most of his anger is aimed at Braithwaite, the main owner of the business. He said he wishes the tougher OSHA actions had come sooner. Referring to the years of citations against Braithwaite’s companies, Coshka added: “It’s just sad because this guy dropped the ball so many times and he just keeps getting away with it.” Coschka had started at Nebraska Railcar only a month earlier.

Source: FairWarning.org – By Paul Feldman and Stuart Silverstein

“OSHA Enforcement Case Database By State” #OSHA #Violations #Data

osha-database-of-fines-2016

Enforcement Cases with Initial Penalties Above $40,000

(Includes citations issued starting January 1, 2015. Cases are updated weekly. There is a posting delay to ensure the parties have been notified.)

Click on link to view States Map and Violations by State : https://www.osha.gov/topcases/bystate.html

NOTE: OSHA is currently migrating its legacy system. Cases prior to 2011 (Federal OSHA) and 2013 (OSHA State Plans) may be affected by this migration. Cases indicated without the .015 extension reflect the data as of 08/05/2016. The next updates for those cases will be reflected October, 2016. Should you need case status updates for those cases before October 2016, please contact your originating OSHA Office.

“Top 10 OSHA Citations of 2016: A Starting Point for Workplace Safety”

OSHAupdate

Every October, the Department of Labor’s Occupational Safety and Health Administration releases a preliminary list of the 10 most frequently cited safety and health violations for the 2016 fiscal year, compiled from nearly 32,000 inspections of workplaces by federal OSHA staff.

One remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.

More than 4,500 workers are killed on the job every year, and approximately 3 million are injured, despite the fact that by law, employers are responsible for providing safe and healthful workplaces for their workers. If all employers simply corrected the top 10 hazards, we are confident the number of deaths, amputations and hospitalizations would drastically decline.

Consider this 2016 list a starting point for workplace safety:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

It’s no coincidence that falls are among the leading causes of worker deaths, particularly in construction, and our top 10 list features lack of fall protection as well as ladder and scaffold safety issues. We know how to protect workers from falls, and have an ongoing campaign to inform employers and workers about these measures. Employers must take these issues seriously.

We also see far too many workers killed or gruesomely injured when machinery starts up suddenly while being repaired, or hands and fingers are exposed to moving parts. Lockout/tagout and machine guarding violations are often the culprit here. Proper lockout/tagout procedures ensure that machines are powered off and can’t be turned on while someone is working on them. And installing guards to keep hands, feet and other appendages away from moving machinery prevents amputations and worse.

Respiratory protection is essential for preventing long term and sometimes fatal health problems associated with breathing in asbestos, silica or a host of other toxic substances. But we can see from our list of violations that not nearly enough employers are providing this needed protection and training.

The high number of fatalities associated with forklifts, and high number of violations for powered industrial trucksafety, tell us that many workers are not being properly trained to safely drive these kinds of potentially hazardous equipment.

Rounding out the top 10 list are violations related to electrical safety, an area where the dangers are well-known.

Our list of top violations is far from comprehensive. OSHA regulations cover a wide range of hazards, all of which imperil worker health and safety. And we urge employers to go beyond the minimal requirements to create a culture of safety at work, which has been shown to reduce costs, raise productivity and improve morale. To help them, we have released new recommendations for creating a safety and health program at their workplaces.

We have many additional resources, including a wealth of information on our website and our free and confidential On-site Consultation Program. But tackling the most common hazards is a good place to start saving workers’ lives and limbs.

Thomas Galassi is the director of enforcement programs for OSHA.

“OSHA – DOL News Release” – “Worker Falls 22 Feet to Death, 4 Months After OSHA Cites Employer for Failing to Protect Workers on the Same Job Site”

Worker falls 22 feet to death  4 months after OSHA cites employer for failing to protect workers on the same job site

Louisville employer faces $320K in fines for serial disregard of fall protection

ADDISON, Ill. ‒ Four months after federal safety investigators cited his employer for failing to provide workers with fall protection at a United Parcel Service facility in Addison, a 42-year-old employee of Material Handling Systems/MHS Technical Services, fell 22 feet to his death at the same site.

On July 29, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration cited the employer for three egregious willful violations for exposing workers to falls over 6 feet, after its investigation of the Feb. 9, 2016, fatality. OSHA also cited three repeated and three serious safety violations.

“A man is dead because this employer decided to break the law over and over again. Before this tragedy, OSHA cited this contractor twice for exposing workers to fall hazards, including at the same site just four months earlier,” said Dr. David Michaels, assistant secretary of labor of Occupational Safety and Health. “OSHA is asking companies contracting with Material Handling Systems to take strong steps to ensure that this employer protects its employees, and terminate its contracts if this employer continues to violate OSHA regulations. Material Handling Systems employer must demonstrate it can work safely and stop injuring its employees.”

OSHA also found Material Handling Systems/MHS Technical:

–       Exposed other workers to falls of up to 22 feet as they hoisted conveyor equipment while working on raised surfaces with unprotected sides. Failed to determine whether walking and working surfaces could structurally support employees.

–       Allowed workers to use a combustible polyethylene tarp as a welding curtain, which created a serious fire hazard.

OSHA cited Material Handling Systems most recently for fall protection violations in October 2015 at the same jobsite. In 2014, OSHA cited the company for similar violations after an employee suffered serious injuries in a fall in Keasby, New Jersey. The employer also received fall protection citations in 2009 in Oregon and 2012 in Florida. The company’s workers’ compensation carrier is Old Republic Insurance Company of Greensburg, Pennsylvania.

Material Handling Systems/MHS Technical Services removes and installs high-speed conveyor systems. In this case, the company was working under a multi-million contract with United Parcel Service to dismantle existing conveyor systems and install new, high-speed conveyors at UPS’s Addison facility.

Based in Louisville, Kentucky, Material Handling Systems/MHS Technical Services faces total proposed penalties of $320,400. View current citations here.

Preventable falls account for nearly 40 percent of all deaths in the construction industry. Federal safety and health officials are determined to reduce the number of preventable, fall-related deaths in the construction industry. OSHA offers a Stop Falls online resource with detailed information in English and Spanish on fall protection standards. The page provides fact sheets, posters, and videos that illustrate various fall hazards and appropriate preventive measures. OSHA standards require that an effective form of fall protection be in use when workers perform construction activities 6 feet or more above the next lower level.

OSHA’s ongoing Fall Prevention Campaign was developed in partnership with the National Institute for Occupational Safety and Health and NIOSH’s National Occupational Research Agenda program. Begun in 2012, the campaign provides employers with lifesaving information and educational materials on how to prevent falls, provide the right equipment for workers and train employees to use fall protection equipment properly.

Material Handling Systems/MHS Technical Services has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s North Aurora office at 630-896-8700.

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 http://www.osha.gov.

# # #

Media Contacts:

Scott Allen, 312-353-6976, allen.scott@dol.gov
Rhonda Burke, 312-353-6976, burke.rhonda@dol.gov

Release Number: 16-1572-CHI

Fall Protection Training – Miller Fall Protection

“Free Webinar – On Demand” – “What To Do When OSHA Comes Calling”

Free Webinar On Demand What to Do When OSHA Comes Knocking

Many businesses view the issue of compliance as merely a nuisance, and the fines that result simply as the cost of doing business. Effective August 1, this “cost of doing business” will rise considerably thanks to a new regulation that includes a 78% penalty increase. Are you prepared for an OSHA inspection?

This free webinar on-demand provides tips and best practices to help you prepare for your next OSHA inspection. View the webinar to learn:

What to expect when OSHA arrives

How to walk inspectors through your facility

Best practices for impressing your OSHA auditor

How to contest an OSHA citation

Sign Up – Register Here: http://bit.ly/2a0AqE5

Speaker Profile

Rick Foote has over 25 years of experience in the field of Environmental, Health & Safety and is currently an Environmental Services Consulting Manger for Triumvirate. Rick has been with Triumvirate for over 12 years where he has established dozens of successful EH&S programs for companies that had few or no systems in place. He brings client programs into full regulatory compliance by establishing what programs exists, what level of compliance is achieved, and identifying the changes that need to be implemented. Each EH&S program that Rick develops is customized to the individual client’s needs.

“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’s Confidentiality Provisions May Not Preclude Consultant Depositions”

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By:Daivy P. Dambreville, The Legal Intelligencer

June 16, 2016

In an effort to comply with the regulations established by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), employers can request from the agency a voluntary inspection to determine whether they are in compliance. These voluntary inspections are often conducted on behalf of OSHA by third-party consultants that receive federal grant money. Following an inspection, the consultants draft written reports detailing their findings and recommendations. Under OSHA’s regulations, these written reports are deemed confidential and may only be disclosed to the employer for whom it was prepared. According to OSHA, the disclosure of the written reports—to parties other than the employer—would adversely affect the operation of its consultation program, and breach the confidentiality of commercial information held by the employer.

Yet, in a recently decided case, a plaintiff successfully sought to depose a consultant regarding the findings of a voluntary inspection, after an employer disclosed the written report during discovery. As a matter of first impression, the Superior Court of Pennsylvania was tasked with determining whether allowing the deposition of a consultant would violate OSHA’s confidentiality provisions.

In Price v. Simakas, 133 A.3d 751, 753 (Pa. Super. Ct. 2016), Tracy Price sustained injuries while working on the premises of her employer. According to the decision, the injuries occurred when Price’s hair became tangled in a polymer mixing machine that she was unable to power off. Price subsequently brought legal action against Simakas Co. Inc. and others, alleging that her employer contracted with the defendants to conduct a voluntary OSHA inspection, and that the defendants were negligent in their duties. Of note, a week prior to the accident, the Indiana University of Pennsylvania and its employees (consultants) conducted the voluntary inspections at the employer’s facility.

While in litigation, the defendants disclosed the consultants’ written reports in discovery. The defendants’ expert thereafter reviewed the reports and described the inspection as “wall-to-wall,” which did not cite any violations concerning the mixing machine. Price later noticed the deposition of the consultants. In response, the consultants filed a motion to quash the subpoenas asserting that OSHA regulations prohibit them from testifying about a voluntary inspection. The trial court denied the consultants’ motion, and the issue was appealed.

On appeal, the Superior Court was tasked—in part—with determining whether the confidentiality language in 29 C.F.R. Section 1908.6(g) and (h) precluded the depositions of the consultants.

Confidentiality Provisions

Under 29 C.F.R. Section 1908.6(g)(1) and (2), “A written report shall be prepared for each visit that results in substantive findings or recommendations, and shall be sent to the employer. … Because the consultant’s written report contains information considered confidential, and because disclosure of such reports would adversely affect the operation of the OSHA consultation program, the state shall not disclose the consultant’s written report except to the employer for whom it was prepared.”

Under 29 C.F.R. Section 1908.6(h), “The consultant shall preserve the confidentiality of information obtained as the result of a consultative visit which contains or might reveal a trade secret of the employer. … Disclosure of information which identifies employers who have requested the services of a consultant would adversely affect the operation of the OSHA consultation program as well as breach the confidentiality of commercial information not customarily disclosed by the employer.”

Consultants May Testify

Relying on the confidentiality language in these provisions, the consultants argued that they could not be compelled to provide oral testimony regarding the voluntary inspection.

In an effort to narrow the issues in dispute, the Superior Court noted that the defendants disclosed the consultants’ written reports during discovery without objection. As such, the only relevant issue is whether OSHA regulations precluded the consultants from providing oral testimony. Ultimately, the Superior Court found that precluding the depositions of the consultants could not serve the confidentiality interests described in the federal regulations as there was no argument set forth that the consultants were privy to any trade secrets, and precluding the depositions would not protect the confidentiality interests described in the regulations.

To sum up, the Superior Court has reasoned that, while OSHA’s confidentiality provisions assure that consultants may not disclose the written reports prepared in connection with a voluntary inspection, consultants are not precluded from providing oral testimony where an employer discloses written reports without objection during the discovery period. Given this recent decision, it appears that the disclosure of a written report by an employer eliminates, at least in part, an employer’s confidentiality protections under OSHA regulation. •

“Heat, Lightning Hazards are Focus of Federal Safety Campaigns”

With the arrival of summer, the Occupational Safety and Health Administration has launched initiatives to alert employers and workers to heat and lightning hazards and the steps to take to prevent injury or illness from them.

The official hashtag of OSHA’s annual heat safety campaign is #WaterRestShade, which is designed to encourage employers to provide their workers with drinking water, ample breaks, and a shaded area while working outdoors.

In a May 26 webinar, OSHA identified four vulnerable populations ‒ the elderly, athletes, emergency responders, and outdoor workers ‒ as being at special risk from extreme heat. In addition, the agency identified time on the job as a risk factor, since the most recent heat-related deaths OSHA investigated involved workers on the job for three days or less. The finding highlights the need for employers to ensure new workers become heat-acclimated before starting or returning to work, the agency stated. In 2014, 2,630 workers suffered from heat illness and 18 died from heat stroke and related causes on the job, according to the agency.

OSHA has provided a host of heat safety tips, which can be found in blog and Twitter posts. An updated webpage also includes illustrations of heat exhaustion and heat stroke, an animated video, training resources, and links to an updated heat safety phone app. OSHA partnered with the National Oceanic and Atmospheric Administration (NOAA) to raise awareness on the dangers of working in the heat through NOAA’s Weather-Ready Nation campaign.

NOAA is also a partner with OSHA in a joint fact sheet on lightning. It urges supervisors and employees working outdoors to consider lightning to be an occupational hazard and to take lightning safety seriously. More than 300 people are struck by lightning every year in the U.S. and, on average, over the past 30 years, about 50 people have died annually. Many others have suffered permanent disabilities.

According to the fact sheet, lightning is unpredictable. It can strike outside the heaviest rainfall areas or even up to 10 miles from any rainfall. When the threat arises, the most important thing to do is move quickly to a safe place and remain there for at least 30 minutes after hearing the last sound of thunder. “When thunder roars, go indoors,” the agencies advise, as nowhere outside is safe when thunderstorms are in the area.

Employers are advised to monitor weather reports, such as at weather.gov, before scheduling outdoor work and throughout the workday. Darkening clouds and increasing wind speeds can indicate thunderstorms are developing. Workers should know in advance where to seek shelter. NOAA recommends seeking fully enclosed buildings with electrical wiring and plumbing, which can serve as grounds for lightning charges. Additional advice includes avoiding the use of corded phones, as they conduct electricity. If caught outdoors, seek safety inside a hard-topped metal vehicle. No place outdoors is safe during a thunderstorm, but workers can reduce the risk of harm by avoiding isolated tall structures or objects, water, open spaces, and metal objects, the agencies said.

OSHA advises employers to include a written lightning safety protocol in their Emergency Action Plans (EAPs). Written EAPs, as outlined in 29 CFR 1910.38 or 29 CFR 1926.35, are required by certain OSHA standards, and are a best practice even when not required. OSHA said it will use its general duty clause as a basis for enforcement, but also reminded employers that during storms or high winds, OSHA prohibits work on or from scaffolds under 29 CFR 1926.451(f)(12); use of crane hoists, 29 CFR 1926.1431(k)(8); and work on top of walls, 29 CFR 1926.854(c). During these weather conditions, crane hoists and scaffold work may continue only if a qualified person determines it is safe. In addition, for scaffold work, personal fall protection or wind screens must be provided.

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