OSHA: Legal Developments and Defense Strategies

All articles by OSHA: Legal Developments and Defense Strategies

 

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…  

Return of the MAC: OSHA Aye-Aye’s Maritime Charter

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…  

Walking-Working Surfaces and Personal Fall Protection: A Final Update

On November 17, 2016, OSHA issued a final rule updating Walking-Working Surfaces standards and establishing Personal Fall Protection Systems requirements in the general industry category. OSHA uses the term “general industry” to refer to all industries not included in agriculture, construction, or maritime. The rule applies to general Walking-Working Surfaces standards dealing with slip, trip, and fall hazards, and also included a new section addressing Personal Fall Protection Systems standards that requires employers to follow specific requirements for using fall protection. Because falls from…  

OSHA Updates Guidelines for Safety and Health Programs

OSHA first released its “Guidelines for Safety and Health Programs” 30 years ago. Since then, the workplace has changed so much that it can, in some ways, appear unrecognizable from days gone by. OSHA has therefore recently updated its guidelines to address both these changes and the accompanying safety and health issues that are now part of the modern workplace. While OSHA’s changes to its guidelines will no doubt help increase safety at the workplace, perhaps the most significant changes were to its online resources 

OSHA Delays Enforcement of Anti-Retaliation Provision Until December 1

OSHA has decided once again to postpone enforcement of the anti-retaliation provision contained in its new injury and illness tracking rule until December 1 in order to allow a federal court time to review a motion challenging the provision. OSHA initially intended to implement the provision on August 10, 2016. At that time, the roll-out was delayed to allow time for outreach to the community the rule affects. The final rule advocates an employee’s right to freely report injuries and illnesses without fear of employer…  

Noise Complaints Don’t Fall on Deaf Ears: OSHA Sets Out to End Workplace Noise Exposure and Related Hearing Loss

Recently, OSHA, the Mine Safety and Health Administration and the National Institute for Occupational Safety and Health teamed up to compel inventors to develop a solution to workplace noise exposure and corollary hearing loss.  The trifecta endeavors to ameliorate the risk of hearing loss that 22 million workers face every year from workplace noise hazards. Employers are required to implement an effective hearing conservation program whenever worker noise exposure is equal to or greater than 85 dBA for an eight-hour exposure, or 90 dBA in…  

Temporary Workers: Staffing Agencies Jointly Liable for OSHA Violations

Concerns employers may use temporary workers as a means to fill hazardous jobs and skirt compliance with OSHA regulations, has led to OSHA holding staffing agencies jointly responsible for safety violations when temporary workers are exposed to unsafe conditions. While the extent of staffing agency responsibilities are fact-specific—based upon the applicable regulations for the particular job and activity—what OSHA has made clear is that staffing agencies and employers are jointly responsible for ensuring OSHA compliance and that temporary workers have a safe place to work.…  

OSHA Penalty Increases About to Take Effect

Near the end of 2015, the Department of Labor announced that OSHA would be making  numerous changes to its enforcement and policies for the year 2016 and beyond. Included amongst these changes is a dramatic increase in its monetary penalties for violations. OSHA’s penalties had previously remained unchanged since 1990. Pursuant to the federal budget signed into law on November 2, 2015, however, OSHA was authorized to increase its penalties by 78 percent. Additionally, OSHA will now continue to adjust its penalties for inflation on…  

OSHA Enforcement Heats Up

OSHA officials have been busy as the weather heats up and spring turned to summer. On May 20, 2016, OSHA cited BC Stucco and Stone, a construction company in Darby, Pennsylvania, for one serious violation and three willful violations. The investigation dated back to November 25, 2015 when an OSHA compliance officer observed an employee working eighteen feet above ground on a scaffold without fall protection. The proposed penalties are $93,000. BS Stucco had also been previously cited on May 2, 2016 at their…  

OSHA’s New Reporting Rule Dabbles With Behavioral Economics to Incentivize Workplace Safety

The U.S. Department of Labor’s Occupational Safety and Health Administration issued a new rule that applies behavioral economics to incentivize workplace safety. The new rule requires electronic submission of workplace injury and illness reports in order to better inform workers, employers and the general public about workplace hazards. OSHA representatives remark that such a policy can be analogized to restaurant grading based on sanitation whereby restaurants must comply with kitchen cleanliness guidelines or suffer public disclosure of violations. Similarly, employers must make workplace safety a…  

A Whistleblower on OSHA’s Whistleblower Protection Program

Darrell Whitman is a former attorney and professor who became an Office of Whistleblower Protection Programs (OWPP) investigator in 2010. Whitman was a GS-12 Regional Investigator for OWPP, the U.S. Department of Labor, and OSHA. In 2011, Whitman and several other investigators began challenging abuses of power in OWPP’s Region 9 offices in San Francisco. They began voicing their concerns through internal union grievance procedures, and then began raising concerns to the OWPP Director and then Secretary of Labor Thomas Perez. The group accused officials…  

OSHA Announces Sweeping Changes in Final Rule on Silica

The Occupational Safety and Health Administration (OSHA) has released its final rule on occupational exposure to respirable crystalline silica. This is the first time OSHA has updated this rule since 1971. In updating the rule, OSHA has lowered the permissible exposure limit (PEL), as well as included requirements for exposure assessment, methods for controlling exposure, respiratory protection, medical surveillance, hazard communication, and recordkeeping. OSHA presents the rule as two standards, one for general industry and maritime and the other for construction. Both standards are scheduled…  

Looking Beyond OSHA for Fall Safety Resources

As OSHA gears up for its yearly National Safety Stand Down to prevent falls in the construction industry, one can expect there to be an increase in available fall related information and resources. With each year’s initiative, OSHA provides substantial guidance for both employers and employees regarding safe practices and fall prevention. While one of the best places to find information on fall safety and OSHA compliance is through OSHA itself, there are many other resources that are just as accessible and may be of…  

The Beryllium Equilibrium: OSHA Schedules Public Hearing on Proposed Rule Intended to Significantly Limit Worker Exposure to Beryllium

The Occupational Safety and Health Administration scheduled a hearing on February 29, 2016 in Washington D.C. to discuss its proposed rule governing occupational exposure limits for beryllium and beryllium compounds.  The proposed rule, which was published on August 7, 2015, would significantly lower workplace exposure to the chemical. OSHA’s present standard permits worker beryllium exposure to 2.0 micrograms per cubic meter of air over eight hours.  This standard was initially implemented by the Atomic Energy Commission in 1948 and later adopted by OSHA in 1971. …  

Groundbreaking OSHA Developments in 2015 to Directly Impact 2016 — and Beyond

As is often the case, the year’s end signals an opportunity to look back and reflect on significant developments that have occurred, to turn one’s attention forward – and to think ahead. This annual focus can relate to almost anything, including politics, entertainment, your health, your family, and yes – even the Occupational Safety and Health Administration (OSHA). Now that 2016 is in full swing, we can see that 2015 was a groundbreaking year for OSHA. During that time, OSHA unveiled significant changes to some…  

OSHA Provides Retailers With Crowd Management Safety Guidelines During Holiday Season

The Holiday Season is definitely upon us. Thanksgiving is only hours away. And while many of us make our last minute preparations for that big turkey dinner and the inevitable tryptophan-induced nap in front of the television, retailers are preparing themselves for one of the biggest shopping days of the year. Black Friday, almost a national holiday unto itself, draws some of the biggest shopping crowds of the year. Many retailers open their doors as early as Thanksgiving night and can still count on a…  

Whistle While You Work: OSHA Draft Policy Seeks to Prevent Retaliation for Employees Reporting Safety Concerns

On November 6, 2015, OSHA issued a draft policy entitled “Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation,” for which it informally seeks public comment through January 19, 2016. The draft policy seeks to facilitate an environment in which employees can freely raise OSHA concerns without the fear of employer retaliation. This whistleblower protection policy specifically focuses on improving safety incentive programs that employers could use in a retaliatory manner against workers who raise such concerns. In its endeavor to create a…  

OSHA Releases Updated Training Handbook For Employers

Since its inception, OSHA’s mission has been to protect workers and prevent work-related injuries, illnesses, and deaths. OSHA’s standards not only regulate workplace conditions, but also dictate the necessary training requirements employers must provide their employees.  These training requirements further OSHA’s philosophy that in order for employees to stay safe, they must have the necessary skills and knowledge to perform their work. Employers are therefore charged with providing essential training as part of their safety programs. In furtherance of assisting employers with this task, OSHA…  

School’s Open – Work Carefully

It’s that time of year again. Much to the dismay of kids (and relief of parents) everywhere, school is back in session. The familiar sign “School’s Open – Drive Carefully” can now be seen on cars and buses all over the road. With the focus on the new school year, OSHA wants to help ensure that students with after-school and weekend jobs also “work carefully.” OSHA has therefore launched a new initiative which focuses on protecting young workers across the country – and is providing…  

We Need Your Vote!

Attention blog readers! We are proud to announce that OSHA: Legal Developments and Defense Strategies has been nominated in The Expert Institute’s “2015 Best Legal Blog Contest.” Over the past month, this contest received more than 2,000 nominations and has now narrowed the field to just 250 of the “most exciting, entertaining, and informative legal blogs online today.” This blog is among the 250 finalists and is listed in the “Labor and Employment” category. To vote, visit The Expert Institute’s contest page here  and click…  

Combating Unpredictable Workplace Violence Under OSHA’s General Duty Clause

On August 26, 2015, a Virginia news reporter, Alison Parker, and a photojournalist, Adam Ward, were tragically shot down by a former colleague while conducting a live television broadcast in Moneta, Virginia. The gunman was later confirmed to be a former reporter at the victims’ news station, who was fired for disruptive conduct in 2013. Such acts of workplace violence are senseless and unpredictable, but there are ways to mitigate dangers still. According to OSHA statistics, every year nearly two million Americans report being victims…  

Refusal to Cooperate With OSHA Leads to Federal Criminal Contempt

For what is believed to be the first time in OSHA history, a company recently was found in criminal contempt for refusal to comply with a warrant obtained by OSHA inspectors to conduct an inspection. A Missouri foundry, its owner, and three representatives of an independent safety-consulting company were found in criminal contempt by a federal judge for refusing access to the site by OSHA inspectors. The U.S. District Court in Kansas City ordered Martin Foundry Co., Inc., owner Darrell Stone, and representatives of Compliance…  

OSHA Offers Free On-Site Consultations to Improve Workplace Safety

Through its On-Site Consultation program, OSHA wants to help small to medium-sized businesses improve and maintain workplace safety standards. In most cases, OSHA representatives will travel directly to your workplace and conduct a detailed inspection. The OSHA representative will identify potential hazards, discuss potential solutions, and review and improve injury prevention programs. This free service is confidential and operates separately from OSHA’s inspection  branch. Neither identifying information nor discovered hazards will be routinely reported to OSHA inspection staff. Additionally, no citations are issued during the…  

OSHA’s Guide To Restroom Access for Transgender Workers

OSHA’s recent publication of its Guide to Restroom Access for Transgender Workers (“Guide”) further forged OSHA’s foray into the spotlight of the hotly prolific LBGT rights discussion. The Guide, which aims to assure that employers provide a safe and healthful working environment for all employees, underscores the principle that “all employees should have access to restrooms that correspond to their gender identity,” according to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. Under OSHA’s Sanitation Standard (1910.141), employers are required…  

Summer is Coming. And OSHA Wants to Help Workers to Beat the Heat

It may not be officially summer just yet, but with the rising temperatures and bright sunny days, it is just around the corner. And while the summer heat means days spent at the beach and backyard barbeques, it also means an increased risk of heat-related illness and death. According to OSHA, each year, dozens of workers die and thousands more become ill due to working in the heat. While the majority of these incidents are from the construction industry, this issue affects all industries that…  

OSHA Rule Regarding Confined Spaces “Hooked” In Texas

Recently, the Texas Association of Builders (“TAB”) filed a petition in the Fifth Circuit Court of Appeals seeking a review of a newly finalized OSHA rule, which was aimed at reducing confined space risks in construction activities.  The TAB petition potentially hinders the rule’s implementation, delaying years’ worth of the rule’s development by the Bush and Obama Administrations. Specifically, the OSHA final rule conforms construction safety standards with OSHA’s existing confined space regulations for general industry, but contains additional provisions.  For example, the new rule…  

Deadly Incident Shows Importance of Addressing OSHA Citations Regarding Process Safety Management

OSHA recently investigated a DuPont facility after four workers were killed by the release of a lethal gas. OSHA cited DuPont for 11 safety violations and fined them $99,000. Nine of these violations were classified as “serious” (OSHA defines a serious violation as when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm), while one was a repeat violation. A DuPont worker was overcome by the release of methyl mercaptan gas after she opened…  

OSHA Seeking Input On Communication Tower Construction and Maintenance Safety

towerOSHA has recently announced that it will be collecting information about the hazards faced by workers during the construction and maintenance of communication towers. With the rapid expansion of wireless communication over the past few decades, there has been an increasing demand for both constructing new communication towers and maintaining those already in service. These jobs can require workers to regularly climb as high as 2000 feet. Working at such great heights naturally presents the risk of not only falling, but also exposure to electrical…  

Upstream Oil, Gas Hazards Added to OSHA Severe Violator Program as “High-Emphasis Hazards”

According to a recently issued OSHA memorandum, over twenty years’ worth of statistics show that upstream oil and gas production operations are plagued by fatalities at a rate five to eight times greater than the national average. Based on these alarming statistics, OSHA implemented a new policy under its Severe Violator Enforcement Program (“SVEP”) captured by Instruction CPL 02-00-149 Section XI, which endeavors to curb industry fatalities. The memorandum concerning this new SVEP Section was quietly issued to field officials and attorneys at a recent…  

OSHA To Host Second Annual Fall Safety Stand-Down in May 2015

From May 4-15, 2015, OSHA will be hosting its second annual National Safety Stand-Down to prevent falls in construction. According to OSHA, jobsite fatalities caused by falls from elevation accounted for 279 of the 806 construction fatalities recorded in 2012. Additionally, fall prevention safety standard violations were among the top 10 citations issued by OSHA in fiscal year 2014. As part of this years’ initiative, OSHA is inviting companies, contractors, and employers of all sizes to conduct voluntary safety “Stand-Downs” focusing on fall hazards and…  

OSHA Issues Amended Procedures for Handling Retaliation Complaints Under the Sarbanes-Oxley Act

On March 5, 2015, OSHA issued amended procedures for the handling of retaliation complaints under Section 806 of the Sarbanes-Oxley Act of 2002. The amended procedures, now effective, govern employee protection claims. By way of background, on November 3, 2011, an interim final rule (“IFR”) governing these provisions and requesting comment was published in the Federal Register, 76 FR 68084. Pursuant to the IFR, five comments were received. The final rule, 29 C.F.R. Part 1980, “Procedures for Handling of Retaliation Complaints Under Section 806 of…  

OSHA Citations Vacated Due to Consumer Products Exception

In a recent decision, the Occupational Safety and Health Review Commission (OSHRC) vacated two citations against a construction company relating to portable fire extinguishers kept at a jobsite. The first citation was for failing to include the extinguishers in its hazard communication program. The second was for failing to provide material safety data sheets for the chemicals contained in the extinguishers. The fire extinguishers at issue were ABC rated and weighed10 pounds each. Between 8 and 10 extinguishers were kept at the jobsite. It was…  

The Right to Delay an OSHA Inspection Until Management Arrives

Chapter 3 of OSHA’s Field Operations Manual (“FOM”) governs OSHA Inspection Procedures, which encompasses many aspects of an inspection including preparation, planning, documentation, and notice. The “conduct of inspection” guideline indicates that the OSHA inspector must locate the owner, operator or agent in charge at the workplace prior to commencing the inspection. In that regard, the FOM provides that “when neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner,…  

Avoiding OSHA Citations: The Best Defense Is (Also) a Good Offense

In the unfortunate circumstance when an employer receives an OSHA citation, it is comforting to know that numerous procedural and substantive legal defenses exist to limit liability. Of the substantive defenses, one of the most effective is known as the “unpreventable employee misconduct” defense. If successful, it can lead to the outright dismissal of the OSHA citation. While this defense can obviously relieve the immediate headache of the citation, it cannot and should not replace the practice of making worker safety the number-one priority. Indeed,…  

OSHA Tweets New Year’s Reporting Resolutions

As of January 1, 2015, OSHA is setting forth new reporting requirements for employers. According to a recent OSHA “Tweet”, employers will be required to report all work-related fatalities within eight hours and all in-patient hospitalizations, amputations and losses of an eye within 24 hours of learning of the aforementioned accidents. Employers are advised that reporting to OSHA may be performed through the OSHA website or by contacting OSHA via telephone. The New Year’s resolution changes the former reporting requirements. Under the “lame duck” requirements…  

OSHA Seeks Input on Updating Chemical Exposure Standards

If you work with or manufacture potentially hazardous chemicals, OSHA wants to hear from you. OSHA has recently launched a national dialogue in an effort to increase the prevention of work-related illness caused by chemicals and hazardous substances. In a YouTube video introducing the initiative, Dr. David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, commented that “[m]any of our chemical exposure standards are dangerously out of date and do not adequately protect workers.” Dr. Michaels further stated that the process…  

Tower Talks: DOL, FCC, Telecommunications Industry Join Forces to Prevent Tower Worker Fatalities

In the words of U.S. Secretary of Labor Thomas E. Perez, “[t]he cell phones in our pockets can’t come at the cost of a worker’s life.” On October 14, 2014, the Department of Labor, Federal Communications Commission, and telecommunications industry leaders joined forces to discuss solutions to the surging trend of tragic deaths among cellular phone tower workers. With worker safety in mind, the trifecta established a group dedicated to implementing recommended safety practices after collaborating with entities such as the National Association of Tower…  

OSHA Communicates New Instruction for Communication Tower Personnel Hoists

In 2013, the communications industry was confronted by an increasing number of fatalities involving worker falls from cell tower sites. Alarmingly, OSHA recorded fourteen fatalities, all of which were determined preventable — either a result of an employer’s failure to provide fall protection or an employee’s failure to use the equipment. In the wake of this statistic, on July 17, 2014, OSHA implemented a new directive governing all work activities on communication towers that involve the use of a hoist to lift personnel to or…