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Citing Benefits, OSHA Warns Of Penalties For Avoiding Injury Reporting Rule

Mar 18, 2016   //   by .   //   Federal, News  //  No Comments
OSHA chief David Michaels is touting the benefits of the agency’s stricter injury reporting rule after its first-year of implementation, but is warning that the many businesses that are still avoiding the rule’s requirements could face increased noncompliance penalties once the agency raises its penalty amounts in an upcoming rule authorized by Congress.

“Employers are choosing not to report because they perceive the cost of not reporting to be low. They should know that, now that the requirement is in its second year, OSHA is more likely to cite for non-reporting,” Michaels said in a March 17 report, “Year One of OSHA’s Severe Injury Reporting Program: An Impact Evaluation.”

But he added that penalties will “increase even more when higher penalty levels recently approved by Congress take effect.”

The report compiled data from the first-year of implementing OSHA’s severe injury reporting rule, which Michaels said has helped officials better target enforcement resources to high-risk areas and work with employers to “identify and eliminate hazards, rather than conducting a worksite inspection.”

“Experience in the field and data from more than 10,000 reports of severe injuries tell us that both goals are being met. We are confident that the events triggered by these reports have eliminated the potential for many more thousands of injuries in U.S. workplaces,” the report says.

The report assessed the results of the 2014 rule, “Occupational Injury and Illness Recording and Reporting Requirements — NAICS Update and Reporting Revisions,” that, among other things, requires employers to notify OSHA within 24 hours in the event of any work-related amputation, in-patient hospitalization or loss of an eye, along with a sweeping update to work site classification codes for injury logs.

OSHA later clarified the new reporting requirements on worker amputations and eye loss delineating the circumstances under which such events are reportable. For example, in a clarifying letter, OSHA said that blindness that does not result in eye removal or inpatient hospitalization does not fall under the new requirements. But an occurrence causing blindness where the worker is hospitalized as an inpatient must be reported within 24 hours, according to OSHA.

In all, the report found employers in federal OSHA states reported more than 10,000 incidents, including almost 7,000 hospitalizations and almost 3,000 amputations. OSHA says this amounts to 30 work-related severe injuries per day.

The report says in many cases OSHA was able to use the reported injury to encourage employers to evaluate their own processes and equipment and determine what went wrong. “Working with OSHA, many employers have found ways to eliminate hazards and protect other workers from the same injuries,” the report says.

OSHA Responses

OSHA says it responded to 62 percent of the 2015 reports, including 69 percent of hospitalization reports, by asking employers to conduct Rapid Response Investigations (RRI), in which employers work with regional offices to assess practices and develop remedies. “In a typical RRI, the employer analyzes the incident to identify the causes and presents to OSHA its findings and proposed abatements,” the report says.

But OSHA also responded to about a third of all injury reports, and 58 percent of amputation reports, with an inspection that enabled regulators to “investigate firsthand the immediate cause of the incident and learn whether hazards remained to threaten the health and safety of workers.”

Michaels said that most employers that experienced a severe injury “were eager to cooperate with OSHA inspectors to prevent anything similar or worse from happening again. In fact, many went above and beyond what was required by OSHA to protect their employees.”

The inspections also helped OSHA gain insights into some emerging industries, like suppliers of oil and gas operations, that until now have had relatively few inspections.

Michaels adds that in “hundreds of cases,” OSHA interactions have resulted in “larger changes” to companies’ overall safety program. “Some employers have changed their incentive programs to reward activities that abate hazards and prevent injuries, rather than offering prizes for not reporting injuries. Others hired safety and health consultants to review potentially hazardous work practices, or signed up for OSHA’s free and confidential on-site consultation services,” the report says..

Despite the documented benefits of the rule, Michaels says as many as 50 percent of severe injuries are still not being reported, especially among small and mid-sized employers. He says the agency plans to stepup outreach strategies to inform them of the requirements.

And in some cases, OSHA has even found employers who, despite a “horrific employee injury,” continue to put workers at risk and even seek to “hide hazards in order to avoid fixing them.”

And he warns that employers that fail to comply — either with the reporting requirements or other obligations — will face increased penalties under OSHA’s upcoming rule, authorized by the fiscal year 2016 budget deal, that is expected to raise penalties for noncompliance for the first time since 1990.

 

Obama’s High Court Pick Seen As Deferential To Agencies — But With Limits

Mar 17, 2016   //   by .   //   Federal, News  //  No Comments
Appellate court judge Merrick Garland, President Obama’s pick to replace the late Supreme Court Justice Antonin Scalia, is widely seen as deferential to OSHA and other agencies — though he has ruled against OSHA in at least one high-profile enforcement action which the agency is still seeking to address.

Obama March 16 announced his selection of Garland, currently the chief judge on the U.S. Court of Appeals for the District of Columbia Circuit, though Senate Republicans have vowed to block his nomination, saying the next president should select the next Supreme Court justice.

Nevertheless, some Senate Republicans — concerned about the prospects of a more liberal pick from likely Democratic candidate Hillary Clinton — have suggested that if a Democrat wins the presidential election, they may consider reviewing Garland during a lame-duck session at the end of the year.

“For those of us who are concerned about the direction of the court and wanting at least a more centrist figure between him and somebody that President Clinton might nominate, I think the choice is clear — in a lame duck,” Sen. Jeff Flake (R-AZ), a member of the Judiciary Committee, told the New York Times.

Since Obama’s announcement, many commentators have noted Garland’s historical deference to agency decisions.

For example, SCOTUSblog noted in an analysis developed in 2010, when Garland was previously considered for the high court, that he largely sides with OSHA and other agencies.

“In a dozen close cases in which the court divided, he sided with the agency every time,” the analysis says.

For example, in a 2009 ruling in FedEx Home Delivery v. National Labor Relations Board (NLRB), Garland dissented from a panel opinion overturning NLRB’s designation of workers as employees rather than contractors. In another 2009 ruling, Northeast Bev. Corp. v. NLRB, Garland similarly dissented from a panel opinion overturning NLRB’s determination that certain conduct was protected under Section 7 of the National Labor Relations Act.

And in a 2003 ruling in Secretary of Labor v. Excel Mining, Garland joined by Judge Judith Rogers upheld Labor Department citations against mine operators.

He also backed the agency in Ross Stores v. NLRB, a 2001 decision where he dissented from the panel’s determination to overturn NLRB’s finding that the employer unlawfully admonished an employee for engaging in union solicitation.

Garland has been similarly deferential to EPA — and agency with which OSHA is increasingly cooperating and coordinating. However, the analysis notes that Garland has also frequently been willing to back environmentalists’ challenges to agency rules. “This is in fact the area in which Judge Garland has been most willing to disagree with agency action,” the analysis says.

In several unanimous rulings in which Garland has participated, the court has also underscored a concern that civil rights plaintiffs receive an appropriate day in court, according to the SCOTUSBlog analysis. For example, in 2008, Garland wrote the unanimous decision in Steele v. Schafer, where the panel reversed a lower court’s summary judgment holding for an employer and reinstated hostile work environment and retaliation claims.

Enforcement Actions

While Garland has largely been deferential to agency decisions, he appears to have a mixed record when reviewing OSHA enforcement actions.

For example, in one high-profile case, he joined the majority in a split 2014 decision in Sea World of Florida v. Perez to uphold an OSHA finding that Sea World violated the general duty clause of the OSH Act “by exposing trainers to recognized hazards when working in close contact with killer whales during performances, and that abatement procedures recommended by the labor secretary were feasible,” according to the ruling.

“Statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous,” Rogers wrote in the majority opinion that Garland joined.

By contrast, Garland wrote a concurring opinion in Volks Constructors v. Secretary of Labor, a 2012 decision, in which he ruled to overturn an OSHA enforcement action, rejecting the agency’s argument that its six-month statute of limitations applies to injury and illness recordkeeping violations.

According to lawyers at Conn Maciel Carey, OSHA had tried to impose a legal theory that inaccurate logs were a “continuing violation” that tolled the statute of limitations period for every day the log remained inaccurate.

But Garland held that a recordkeeping violation occurs at a point in time when the recordkeeping entry was due to be perfected, it does not continue beyond that date, and OSHA may not cite beyond six months from that date.

According to the lawyers, Garland cautioned not to override his opinion, emphasizing that: “This does not mean, however, that the statute could not admit of a continuing violation theory under other circumstances.”

OSHA is now working on a rulemaking to undo that decision, the lawyers say.

 

DOJ Takes Steps To Bolster Civil Enforcement For Workplace Violations

Mar 16, 2016   //   by .   //   Federal, News  //  No Comments
The Justice Department (DOJ) is taking a series of steps to bolster its civil enforcement efforts against workplace violations under federal environmental laws, adding to its high-priority effort to step up criminal enforcement against workplace safety violations under the pollution control statutes.

“We are strengthening our efforts to pursue civil cases that involve worker safety violations under the Clean Air, Clean Water, Resource Conservation and Recovery and Toxic Substances Control Acts,” John Cruden, DOJ’s top environmental official, told a March 16 event in Washington, DC.

Cruden, assistant attorney general for the environment and natural resources division (ENRD), said these statutes contain “a number of provisions that establish safety measures for chemical handling, toxic releases, or catastrophe prevention; violations of these statutes often have a direct impact on workers tasked with handling dangerous chemicals or cleaning up spills.”

Cruden outlined four specific steps the department is taking to strengthen its civil enforcement efforts against workplace safety violations, including: working with OSHA to ensure settlements and any injunctive relief address violations of the environmental laws, and protects workers; cross-training between OSHA and other relevant regulatory agencies so each understands the others’ authorities, processes and resources; better information sharing, which has already accelerated case development and helped to identify additional industries and activities for enforcement; and ensuring that each case referral is reviewed for potential workplace safety violations and investigated and developed.

He said the civil enforcement effort has already “produced results,” adding that “there are several pending civil cases with worker safety components.

The ENRD’s efforts to address civil violations is part of a broader administration effort, announced late last year, to step up criminal enforcement for workplace safety under the environmental laws. Among other things, Deputy Attorney General Sally Yates issued a memo giving formal responsibility for criminal workplace safety violations to ENRD, along with the various U.S. Attorneys’ offices.

In addition, Yates also signed a memorandum of understanding between DOJ and the Department of Labor that outlines how criminal referrals will be coordinated and tracked, how information and data will be shared and how training for both prosecutors and investigators will be developed and disseminated, Cruden said.

He said such efforts are needed both because of historical under-enforcement of workplace safety violations and because workplace safety laws provide “woefully inadequate” penalties compared to the injury caused by violations.

“As a result, many in industry often treat Occupational Safety and Health (OSH) Act penalties as a cost of doing business and not a deterrent to non-compliance with the laws,” he said.

For example, the OSH Act criminalizes only three types of violations and even then violations are only misdemeanors, he said. By contrast, violations of the three major environmental statutes — Clean Air Act, Clean Water Act and the Resource Conservation and Recovery Act — can result in a host of felonies that result in significant jail time and millions of dollars in penalties.

“The use of the endangerment provisions of these statutes has enabled the United States to prosecute criminal conduct that might go unaddressed under the worker safety laws, such as conduct that did not result in the death of an employee,” Cruden said.

Cruden said the stepped up enforcement of workplace safety violations is “priority at the highest levels” at both DOJ and the Labor Department.

 

Lawyers Warn Of Stepped Up OSHA Enforcement, Penalties

Mar 10, 2016   //   by .   //   Federal, News  //  No Comments
Two lawyers are warning employers to expected stepped up enforcement and penalties by federal workplace safety regulators and are urging industry to review their environmental health and safety plans to ensure they comply with relevant regulatory requirements.

Lou Ferreira and Cory Haller, attorneys at Stoel Rives, said in a March 7 alert that recently enacted legislation allowing OSHA to raise penalties, along with the Justice Department’s recent announcement that it plans to step up criminal prosecutions for workplace safety violations, indicates that employers could face greater liability for any violations.

“As these changes make clear, there is a trend towards more aggressive enforcement of worker safety standards,” they write.

They cite two factors driving this trend. The omnibus budget bill that President Obama enacted late last year included language authorizing OSHA to increase penalties for alleged willful, repeat and serious violations of its standards. Annual adjustments going forward are also established.

Safety and health activists have long sought such an increase to address what they consider the low deterrent effect of OSHA fines.

But the legislation requires OSHA to promulgate by Aug. 1 an interim final rule before it can implement a one-time “catch-up” increase of penalty caps to match inflation since 1990, when maximum fines were last authorized.

OSHA, unlike most agencies, could not under federal law increase the penalty ceiling to adjust for the Consumer Price Index until the recently enacted budget agreement that contains provisions for increasing OSHA fines. The unexpected panel cap increase also provides for regular annual adjustments based on inflation moving forward.

OSHA Administrator David Michaels told InsideOSHAOnline that the agency would not proceed with its rulemaking until it receives guidance from the Office of Management and Budget.

Ferreira and Haller says that OSHA has authority under the new law to increase its penalty amounts by as much as 82 percent, though the law does not require such increases. For example, penalties for serious violations could increase from $7,000 to $12,740 while penalties for “repeat” and “willful” violations could increase from $70,000 to as much as $127,400.

The two lawyers say that while the increased penalty amounts could still be comparatively low compared to other regulatory fines, they could still have significant impacts especially on employers with facilities in multiple locations and large operations. That is because recent enforcement actions by OSHA have treated “separate corporations under the same management as a single entity” for the purpose of determining “repeat citations.”

As a result, “relatively minor infractions repeated across numerous locations could result in significantly higher fines under the new regime,” they say.

Ferreira and Haller say the other major factor driving prospects for stepped up enforcement is the Justice Department’s December announcement that it will consolidate responsibility for prosecuting many workplace safety violations in its environmental division and urge prosecutors in those cases to use environmental laws that provide for more stringent penalties than labor laws.

 

OSHA Plans Conference To Address Temporary Worker Safety

Mar 7, 2016   //   by .   //   Federal, News  //  No Comments
OSHA on Friday announced that it will host a conference in Illinois to address workplace safety and health concerns for temporary worker.

The OSHA Safety Day Training Conference will be held on March 18 in Sugar Grove, IL, featuring sessions on industrial hygiene fundamentals, machine safeguarding, risk assessment, occupational safety and health management programs, and more.

Nearly 300 employees and managers are expected to attend, according to OSHA, and participation will include members from the manufacturing, healthcare, education, and retail industries.

“The 2016 Safety Day Training Conference is a great opportunity to help small businesses prevent job injuries and protect their workers,” said OSHA area director Jacob Scott in a statement.

The conference is being co-sponsored by Waubonsee Community College, which is hosting the event.

Under current regulation, OSHA requires that both host employers and temporary staffing agencies have joint control over employee safety and health.

The agency recommends establishing responsibilities for complying with OSHA standards through contracts between the host employers, temporary staffing agencies, and employees. – Joshua Higgins (jhiggins@iwpnews.com)

 

NIOSH Posts New Resources To Prevent Aerial Lift Falls, Injuries

Mar 2, 2016   //   by .   //   Federal, News  //  No Comments
The National Institute for Occupational Safety and Health and OSHA have released new resources to help employers better prevent fall injury and death when aerial lifts are being used.

OSHA announced March 1 a new NIOSH webpage devoted to aerial lift safety, including guidance on risks associated with lifts, computer simulations to help employers better prepare employees for hazards, as well as guidance on OSHA requirements and industry standards.

OSHA has also issued a fact sheet on aerial lifts, summarizing methods of employee training, procedures that should be taken prior to and during operation of aerial lifts, and what requirements must be met to avoid enforcement actions from non-compliance with OSHA standards.

In its announcement, OSHA highlighted a Feb. 22 enforcement action against Skyline Contracting and Roofing Corp. for ignoring industry and OSHA standards for aerial lifts, resulting in $102,900 in fines for non-compliance. – Joshua Higgins (jhiggins@iwpnews.com)

 

OSHA Seeks Comment On Walking, Working Surfaces Information Collection Requirements

Mar 2, 2016   //   by .   //   Federal, News  //  No Comments
OSHA is requesting public comments on information collection requirements contained in its Walking and Working Surfaces Standard for General Industry.

A Federal Register notice from OSHA states the agency is looking to determine the desired format and minimize the reporting burden of reporting requirements contained in the standards.

The requirements mandate that employers provide information regarding causes and prevention of occupational injuries, illnesses and accidents from walking and working surfaces hazards such as collapse of overloaded floors, outrigger scaffolds, and failure of defective portable ladders.

OSHA seeks information on whether the information collection requirements are necessary and whether the department is efficiently gathering information while minimizing employer burden.

Comments are due on the information gathering requirements on April 1. – Joshua Higgins (jhiggins@iwpnews.com)

OSHA Reschedules Hearing On Beryllium Rule

Feb 29, 2016   //   by .   //   Federal, News  //  No Comments
An OSHA hearing originally scheduled for this week on a proposed rule on occupational exposure to the chemical beryllium has been pushed back to March 21, according to the agency.

The March hearing will bring together stakeholders to participate in the rulemaking process by providing oral testimony and documentation for a final rule, according to OSHA.

The proposed “general industry” rule reduces the allowed workplace exposure to beryllium by 90 percent, matching union-industry negotiated model standards for decreasing risk of exposure to the chemical that causes chronic beryllium disease and increases lung cancer risk.

OSHA first proposed the rule on Aug. 6, 2015, with the aim of better shielding workers in all industries but the construction and shipping industries. OSHA is gathering more data before developing standards tailored to those two sectors.

OSHA chief David Michaels said last year that the union-industry led standard helped clear the path for the OSHA beryllium rule. OSHA is holding the public hearing at the request of the Non-Ferrous Founders’ Society, according to the agency. – Joshua Higgins (jhiggins@iwpnews.com)

 

Report Examines State-By-State Workplace Safety, Health Risks

Feb 25, 2016   //   by .   //   Federal, News  //  No Comments
A new report by Underwriters Laboratories offers an assessment of workplace safety and health on a state-by-state basis, aiding businesses in identifying issues that can be managed through health and safety frameworks and prevent workplace injury, illness and death.

“There is growing recognition among businesses about the impact that workplace health and safety management can have on organizational productivity, worker well-being, morale, risk management, and operational costs,” the report says. “Given this trend, it is not surprising that companies are increasingly seeking new ways to understand the risk in the communities they operate.”

The report outlines how states compare to the national average in terms of workplace injuries and fatalities, as well as overall health of workers in that state.

It also assesses the impact of poor health on healthcare costs, lost productivity, days of absence, and total cost. – Joshua Higgins (jhiggins@iwpnews.com)

Attorneys: New OSHA Whistleblower Guidance Favors Employees

Feb 23, 2016   //   by .   //   Federal, News  //  No Comments
The bar has dropped for OSHA investigators to determine whether a workplace retaliation complaint has merit, according to an assessment by occupational safety and health attorneys, leaving employers more vulnerable to whistleblower investigations.

Under recently revised whistleblower investigation guidance, OSHA investigators no longer have to determine that retaliation against an employee who reports a health and safety violation actually occurred. Rather, investigators now only need to be convinced that an administrative law judge could find that retaliation did occur, according to a blog post from law firm Epstein Becker Green.

“This subjective standard, and the elimination of the employer’s ability to avoid a merit finding by providing clear and convincing evidence that the alleged retaliatory act would have taken place without the whistleblower’s protected activity, seems to have tipped the balance in the whistleblower’s favor and played employers in a precarious situation — unable to determine with any degree of certainty their chances of prevailing in any whistleblower case,” the post says.

The number of cases that are scheduled for hearings before administrative law judges will likely increase as a result of the new guidance, the post says, and may result in more employers opting to participate in OSHA’s early resolution option, which allows an OSHA investigator to work with the employer and employee to settle the retaliation complaint. – Joshua Higgins (jhiggins@iwpnews.com)

Safety Engineer Group Urges OSHA To Require Workplace Safety, Health Program Adoption

Feb 22, 2016   //   by .   //   Federal, News  //  No Comments
The American Society of Safety Engineers is “disappointed” OSHA has not completed a rulemaking that requires employers to adopt safety and health management programs, but sees updated guidelines on such programs as a positive step forward.

According to comments submitted on OSHA’s new voluntary guidelines supporting health and safety management programs, ASSE is planning to partner with OSHA to determine ways to promote the updated guidelines across industries.

The organization – which represents occupational safety and health professionals – states that there is more knowledge about safety and health management systems, and better resources exist for employers to implement such programs.

“OHSA’s draft [guidance] gives the safety and health community a timely opportunity to come together to build a lasting document that can advance acceptance of a game-changing tool to save life’s and reduce injuries and illnesses in U.S. workplaces,” ASSE states in its comments.

The society urges inclusion of “prevention through design” processes to “design out” hazards before they appear in the workplace. Further, it encourages a “systems approach” to safety and health management, taking a “holistic” view of safety and health management.

It underscores the importance of relying on health and safety professionals to best implement such programs, and encourages for better evaluation and improvement processes for health and safety management programs. – Joshua Higgins (jhiggins@iwpnews.com)

 

OSHA Recordkeeping Requirements

Feb 3, 2016   //   by .   //   Federal, News  //  No Comments
OSHA on Jan. 1, 2015 implemented new reporting and recordkeeping requirements mandating that all work-related fatalities be reported to OSHA or state OSH agencies within eight hours, and all work-related hospitalizations, amputations and eye losses within 24 hours. A log of all injuries and deaths within the first year of the new requirements must be filed on “Form 300A” to OSHA and be posted for employee review.

OSHA Strikes Deal With Trucking Association On Hazard Reduction

Feb 2, 2016   //   by .   //   Federal, News  //  No Comments
OSHA on Monday announced that it has renewed an alliance with the Industrial Trucking Association to minimize worker injuries and fatalities from industrial truck tip-overs and “struck-by” hazards.

According to OSHA, the alliance will allow for development of resources and training on hazards that lead to truck tip-overs and struck-by hazards. The OSHA-Industrial Trucking Association Alliance will also focus efforts on fall prevention and heat illness campaigns.

“Many workers suffer serious injuries or die from being crushed, struck by or falling from forklifts,” said Labor Assistant Secretary for Occupational Safety and Health David Michaels in a statement. “Our continued alliance with ITA will help us promote awareness of the dangers of this equipment and provide valuable information and training to protect the safety of workers.”

Through the renewed alliance, OSHA will work with trucking unions, trade and professional organizations, and other groups to prevent workplace fatalities, injuries, and illnesses. — Joshua Higgins (jhiggins@iwpnews.com)

 

OSHA Notice On Approval Of New Jersey Occupational Safety, Health Plan

Jan 29, 2016   //   by .   //   Federal, News  //  No Comments
OSHA on Jan. 22, 2016, issued a notice highlighting completion of development of New Jersey’s state plan for occupational safety and health. OSHA announces in the notice that the state has met all the requirements necessary to implement an effective state plan to regulate industries in that state on health and safety measures in the workplace.

 

OSHA Seeks Comment On Information Collection, Evaluation Of State Plans

Jan 26, 2016   //   by .   //   Federal, News  //  No Comments
OSHA on Tuesday announced that it is seeking public comment on new efforts to reduce paperwork and reporting burdens on states that maintain their own occupational safety and health plans.

According to a Federal Register notice, OSHA is soliciting comments on extension of information collection requirements for the submission, initial approval, continuing approval, final approval, monitoring, and evaluation of OSHA-approved state plans.

The program, according to OSHA, would assure that information gathered would be accurate and create as little burden on states maintaining their own occupational safety and health plans as possible.

OSHA is attempting to determine whether the proposed information collection activities are necessary for the agency’s proper functions and whether information collected is accurate and useful to the agency, according to the notice.

The agency will accept comments through March 28. — Joshua Higgins (jhiggins@iwpnews.com)

 

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