OSHA and The Trump Administration: The First 200 Days

NEW YORK CITY - SEPTEMBER 3 2015: Republican candidate for president Donald Trump announced he had signed a pledge not to run as an independent candidate should he fail to win the party's nomination in 2016.

Any new presidential administration is likely to bring a new philosophy, vision, and focus to a variety of issues—including workplace safety and health. More than 200 days into the Trump presidency, we take a look below at some of the top developments in OSHA thus far in 2017. OSHA’s Volks Rule Overturned  The Volks rule—formally the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness”—was issued on December 19, 2016, during the final days of the Obama Administration. OSHA claimed the rule was created to clarify that employers have an ongoing obligation to make and maintain accurate injury and illness records (OSHA 300 logs) and that OSHA had 5.5 years to cite an employer for failing to do so. Opponents of ...
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OSHA’s Multi-Employer Citation Policy and Construction Sites: Who Is An Employer?

iStock_000053899524_Large Since OSHA’s mission statement is “to assure safe and healthful working conditions for working men and women,” it’s no surprise that its enforcement authority generally rests with citing employers. The Occupational Safety and Health (OSH) Act requires “each employer” to comply with OSHA standards. Construction is no different—29 CFR 1910.12 obligates each “employer” to protect “employees engaged in construction work” and to comply “with the appropriate standards.” OSHA’s multi-employer citation policy (MECP), however, dictates that up to four separate entities all may be cited—and recognized as an employer—in connection with any one incident. Four Employers for the Price of One On multi-employer worksites, OSHA recognizes four types of employers: creating, controlling, exposing, and correcting. A creating employer causes a hazardous condition that violates an OSHA standard. An exposing employer is ...
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Preparing for an OSHA Inspection 101

Depth of field. Great processing photos.Used professional equipment. When it comes to OSHA inspections, preparation is critical. Figuring out what to do (and who should do it) only after an inspector arrives on site puts employers at an immediate—and often irreversible—disadvantage. Consider implementing these OSHA inspection best practices now, before a proverbial “knock on the door.” Fourth Amendment Rights Employers—just like people on the street and in their homes—are entitled to Fourth Amendment protection against unreasonable searches and seizures. An OSHA inspector therefore needs one of two things to proceed with an inspection: a warrant or your consent. Since an inspector will usually arrive without a warrant, the inspector will need your consent. This provides an opportunity (prior to consenting) to negotiate a reasonable scope and protocol for the inspection. Some issues to discuss (and confirm) with the ...
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OSHA Interviews: Understanding and Exercising Your Rights

453643327 Section 8(a) of the Occupational Safety and Health (OSH) Act of 1970 authorizes OSHA to inspect workplaces “during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner.” While employers have some level of protection since the mandate specifically states the word “reasonable,” more specific rights exist—and should be exercised—at all stages of an OSHA inspection, including before, during, and after the interview process. Basic Interview Rights During an OSHA inspection, one or more of your employees is likely to be interviewed by a Compliance Safety and Health Officer (CSHO). Although employees have the right to refuse any interview request, this is likely to represent only a fleeting avoidance of the interview process since OSHA is authorized to issue subpoenas to compel testimony. When ...
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Congress Overturns OSHA Recordkeeping Rule

178709266 On March 1, 2017, the U.S. House of Representatives passed a resolution of disapproval, under the Congressional Review Act, to block OSHA’s “Volks” rule. On March 22, 2017, the Senate followed suit and voted to overturn the rule. Now, the resolution will be forwarded to President Trump to sign, which is expected to occur. The Volks rule—formally the “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” rule—was issued on December 19, 2016, during the final days of the Obama Administration. OSHA claims the rule was created to clarify that an employer’s duty to make and maintain accurate injury and illness records (OSHA 300 logs) is an ongoing obligation, and that OSHA has five-and-a-half years to cite an employer for failing ...
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OSHA Will Partner with Labor Organizations, Trade Associations, and Individual Employers to Train and Protect Workers

Businessman presenting work safety concept, hazards, protections, health and regulations OSHA’s Strategic Partnership Program (OSPP) for Worker Safety and Health is a federal initiative that seeks to reduce occupational fatalities, injuries, and illnesses as well as improve worker protections by engaging labor organizations, employer groups, individual employers and others in formal, cooperative relationships with OSHA to carry out the purposes of the Occupational Safety and Health Act. The OSPP was first created in 1998 and it seeks to have a measurable, positive impact on the workplace by helping participants establish effective safety and health management systems, train managers and workers on the hazards common to their industry, recognize actual hazards at their work sites and eliminate or control these hazards. The OSPP will also create ways to share expertise and other resources among participating partners and establish goals and measures ...
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US Department of Labor Delays Beryllium Rule For the Second Time

On January 9, 2017, OSHA published a rule entitled “Occupational Exposure to Beryllium.” The new rule amends OSHA’s existing standards for occupational exposure to beryllium and beryllium compounds. Beryllium and beryllium compounds are important materials used in various industries, but they are highly toxic, and if inhaled, can increase the risk of developing chronic beryllium disease or lung cancer. The rule change was the result of OSHA’s determination that employees exposed to beryllium at the previously permissible exposure limits faced a significant risk of material impairment to their health. The new rule establishes permissible exposure limits of 0.2 micrograms of beryllium per cubic meter of air (0.2 μg/m3) as an 8-hour time-weighted average and 2.0 μg/m3 as a short-term exposure limit determined over a sampling period of 15 minutes. It ...
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Does Settling an OSHA Citation Make Good Business Sense?

Businessmen making handshake while passing money - dealing & bribery concepts Shortly after issuing a citation to an employer, OSHA will often agree to reduce the penalty amount provided the employer agrees not to contest it. But could settling invite further trouble? For a number of reasons, contractors should give considerable thought before entering into an early settlement with OSHA. You Need to Move Quickly Upon receipt of a citation, you have three basic options: accept the citation as-issued (this is almost never the best option); request an informal conference and attempt to settle or convince OSHA to withdraw the citation; or contest one or more parts of the citation. Never ignore a citation—otherwise critical rights may be lost. Once you have the citation, you have only 15 business days to appear at an informal conference and contest it. Potential “Cost” ...
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Establish a Strong OSHA Defense Before an Inspector Shows Up

iStock_000060649530_Medium In most instances, an OSHA inspector will arrive at your door unannounced. Among other things, the inspector will present his or her credentials, say why he or she is there, and then ask for your consent to conduct an inspection. The actual inspection and a closing conference will follow, along with the issuance of any citations within six months of any violations. UNPREVENTABLE EMPLOYEE MISCONDUCT DEFENSE Although many procedural and legal defenses may exist to an OSHA citation, one of the most popular and effective defenses is the unpreventable employee misconduct defense. Critically, however, its success hinges on what you do well before, not after, OSHA shows up. In order to establish this defense, an employer must show that it has: established work rules designed to prevent the violation; adequately ...
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Return of the MAC: OSHA Aye-Aye’s Maritime Charter

iStock_000034400874_Large On January 19, 2017, OSHA’s Acting Assistant Secretary of Labor renewed a charter first promulgated more than 20 years ago by OSHA’s Maritime Advisory Committee — the oft-referred “MAC.” In so doing, OSHA celebrated a “return of the MAC,” so to speak, by recognizing MAC as a mainstay in U.S. maritime bureaucracy. It remains unclear if OSHA intended its arguably less sexy adaptation as a tacit homage to the timeless 1996 Billboard hit, “Return of the Mack”*; crystal clear, however, is OSHA’s re-commitment to MACOSH doctrine. Together, MAC and OSHA will remain responsible for reckoning discourse and touting expert counsel on maritime-related occupational concerns. Such concerns include those voiced by anyone from the able-bodied seaman to the corporate official (who may also happen to be able-bodied), and permeate all maritime sectors from shipbuilding, ship breaking, ship ...
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