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“US House of Representatives Seeking to Make OSHA VPP Permanent”

Washington – Several members of the House have joined forces to reintroduce bipartisan legislation that would make permanent OSHA’s Voluntary Protection Programs.

Reps. Todd Rokita (R-IN), Gene Green (D-TX) and Martha Roby (R-AL) claim the Voluntary Protection Program Act is “sound policy that is not only good for the employers and employees but for the American economy overall,” Rokita said in a March 9 press release.

The proposed legislation would denote a long-term commitment to OSHA’s program, which recognizes worksites that achieve exemplary occupational safety and health performance. To be accepted into the program, worksites must implement safety and health management systems that yield below-average injury and illness rates. Successful worksites involved in VPP then gain exemption from certain OSHA inspections.

More than 2,200 worksites covering approximately 900,000 employees have participated in VPP since its 1982 inception. The VPP Act would codify the program, meaning Congress would be unable to withdraw its funding.

The legislation has remained before the Senate’s Health, Education, Labor, and Pensions Committee since it was read twice and referred to the committee in late April 2016.

“The Voluntary Protection Program is one of the few programs that has achieved unified support from both union and non-unionized labor, small and large businesses, and government,” Green said in the release. “I am proud to work with colleagues on both sides of the aisle to codify this important safety program that saves money while protecting workers.”

Added Roby: “The best way to ensure worker safety is through partnerships, not penalties. VPP helps companies become compliant with workplace safety rules on the front end to avoid costly fines and harmful penalties on the back end. It’s a smart way to ensure a safe and productive workplace, while also making government smaller and more efficient.”

The House considered similar legislation – also introduced by Rokita, Green, and Roby – in May 2015. It was referred to the Workforce Protections Subcommittee that November.

Given the current political climate,it would not be surprising to see this adopted at some point in the near future. Time will tell.

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“11 Tips for Handling Hazardous Materials”

Don’t become a target for one of these avoidable citations! Join us on March 29 for an in-depth webinar presented by Meaghan Boyd, a seasoned environmental litigation partner at Alston & Bird, as she discusses best practices for hazardous materials transportation.

You’ll learn:

  • How to identify hazardous materials ahead of transport
  • What type of training is required for people who offer transport of hazardous materials
  • How to determine appropriate packaging, marking and labeling when transporting a hazardous material
  • Penalties for not properly labeling or shipping a “hazardous material”
  • How to apply for DOT special permits
  • “Hot topics” in hazmat transportation, including lithium batteries, that could lead to compliance risks

Save my seat.

Source: BLR

“Conducting An Effective Job Hazard Analysis” – Infographic” #JHA #Safety

JHA_InfographicJob hazard analysis is an essential component of a successful safety program. This BLR infographic details the 6 steps of a JHA so you can assess the hazards at your facility and implement corrective actions.

“JHA Downloads”

JHA Checklist: http://bit.ly/20crSNM

OSHA JHA Powerpoint: http://bit.ly/1K1ebiT

“7 Common Workplace Safety Hazards” #WorkplaceSafety

“Safety Topic Information For a Better Safety Committee at Your Workplace”

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

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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.

“Does Your Facility Have An Effective Safety Culture? Is Safety Truly A Priority?

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One way to improve the effectiveness of your safety process is to change the way it is measured.

Measurement is an important part of any management process and forms the basis for continuous improvement. Measuring safety performance is no different and effectively doing so will compound the success of your improvement efforts.

Finding the perfect measure of safety is a difficult task. What you want is to measure both the bottom-line results of safety as well as how well your facility is doing at preventing accidents and incidents. To do this, you will use a combination of lagging and leading indicators of safety performance.

Lagging indicators of safety performance

What is a lagging indicator?

Lagging indicators measure a company’s incidents in the form of past accident statistics.

Examples include:

  • Injury frequency and severity
  • OSHA recordable injuries
  • Lost workdays
  • Worker’s compensation costs

Why use lagging indicators?

Lagging indicators are the traditional safety metrics used to indicate progress toward compliance with safety rules. These are the bottom-line numbers that evaluate the overall effectiveness of safety at your facility. They tell you how many people got hurt and how badly.

The drawbacks of lagging indicators.

The major drawback to only using lagging indicators of safety performance is that they tell you how many people got hurt and how badly, but not how well your company is doing at preventing incidents and accidents.

The reactionary nature of lagging indicators makes them a poor gauge of prevention. For example, when managers see a low injury rate, they may become complacent and put safety on the bottom of their to-do list, when in fact, there are numerous risk factors present in the workplace that will contribute to future injuries.

Leading indicators of safety performance

What is a leading indicator?

A leading indicator is a measure preceding or indicating a future event used to drive and measure activities carried out to prevent and control injury.

Examples include:

  • Safety training
  • Ergonomic opportunities identified and corrected
  • Reduction of MSD risk factors
  • Employee perception surveys
  • Safety audits

Why use leading indicators?

Leading indicators are focused on future safety performance and continuous improvement. These measures are proactive in nature and report what employees are doing on a regular basis to prevent injuries.

Best practices for using leading indicators

Companies dedicated to safety excellence are shifting their focus to using leading indicators to drive continuous improvement. Lagging indicators measure failure; leading indicators measure performance, and that’s what we’re after!

According to workplace safety thought leader Aubrey Daniels, leading indicators should:

  1. Allow you to see small improvements in performance
  2. Measure the positive: what people are doing versus failing to do
  3. Enable frequent feedback to all stakeholders
  4. Be credible to performers
  5. Be predictive
  6. Increase constructive problem solving around safety
  7. Make it clear what needs to be done to get better
  8. Track Impact versus Intention

While there is no perfect or “one size fits all” measure for safety, following these criteria will help you track impactful leading indicators.

How Caterpillar used leading indicators to create world-class safety

An article on EHS Today titled, “Caterpillar: Using Leading Indicators to Create World-Class Safety” recaps an interview with two Caterpillar executives who explained how they were able to successfully transition to a culture that utilizes leading indicators for safety.

According to the execs at Caterpillar, “… traditional metrics can help companies tell the score at the end of the game, but they don’t help employers understand the strengths and weaknesses of their safety efforts and cannot help managers predict future success.”

By utilizing a Safety Strategic Improvement Process (SIP) that emphasized leading indicators of safety, they saw an 85% reduction of injuries and $450 million in direct/indirect cost savings.

According to the article, the critical elements of the SIP included:

  • Enterprise-wide statement of safety culture.
  • Global process, tools and metrics.
  • Top-down leadership of and engagement with the process.
  • Clearly defined and linked roles and responsibilities.
  • Clearly defined accountability.
  • Consistent methods establishing targets and reporting performance.
  • Consistent criteria for prioritizing issues and aligning resources.
  • Recognition for positive behavior and performance.
Conclusion

To improve the safety performance of your facility, you should use a combination of leading and lagging indicators.

When using leading indicators, it’s important to make your metrics based on impact. For example, don’t just track the number and attendance of safety meetings and training sessions – measure the impact of the safety meeting by determining the number of people who met the key learning objectives of the meeting / training.

What metrics do you use to measure your facility’s safety performance? Do you use a combination of leading and lagging indicators?

“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.

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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).

“MSHA Launches Enhanced Safety Standards Enforcement To Encourage Better Examinations By Industry’s Operators”

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Heightened focus starts July 1 in effort to protect miners, prevent fatalities  

ARLINGTON, Va. – On July 1, the U.S. Department of Labor’s Mine Safety and Health Administration will begin enhanced enforcement of “Rules to Live By,” its initiative of standards commonly cited following mine deaths, and nine underground coal mine exam rule standards focused on the greatest risks to miners in underground coal mines. The agency announced these measures on May 12, 2016, at a mining industry stakeholder meeting in Arlington.

“While we’ve seen progress in reducing mining deaths associated with both Rules to Live By and the exam rule, mine operators need to conduct better site inspections and take appropriate action to improve compliance with these standards,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “That is why we are increasing attention on these critical standards. We urge the mining industry to do the same.”

An agency analysis of hundreds of U.S. mining fatalities in a 10-year period shows that fatalities associated with Rules to Live By standards have decreased an average of 23 percent, and significant and substantial citations and orders issued for violations of these standards have declined an average of 37 percent.

Fatalities associated with the exam rule have decreased an average of 22 percent, and S&S citations and orders issued for violations of this standard have declined an average of 45 percent.

Beginning July 1, MSHA will employ its web-based Rules to Live By and exam rule calculators more extensively to determine the number of citations and orders issued during the most recent completed inspection periods for which data are available. Inspectors will provide mine operators with a copy of the results, encouraging them to use the tools to monitor their own compliance and take action to eliminate violations. The results will be added to criteria for consideration of impact inspections, particularly targeting mines with elevated noncompliance of these standards.

MSHA launched its Rules to Live By outreach and enforcement initiative in 2010. The agency published its exam rule in 2012.

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Media Contact:

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

Release Number: 16-1295-NAT

“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. •

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