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OSHA Seeks Comment On Information Collection, Evaluation Of State Plans

Jan 26, 2016   //   by .   //   Federal, News  //  Comments Off on OSHA Seeks Comment On Information Collection, Evaluation Of State Plans
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 (


Businesses face April 30 deadline on recordkeeping requirement

Jan 19, 2016   //   by .   //   Federal, News  //  Comments Off on Businesses face April 30 deadline on recordkeeping requirement
OSHA has announced that employers must post between Feb. 1 and April 30Form 300A, which summarizes to employees the total job-related injuries and illnesses that were logged in 2015.

According to OSHA, more employers are now covered by the requirements, following changes to the agency’s recordkeeping and posting requirements that went into effect in January 2015.

Previously, employers with 10 or fewer employees and employers in “specific low-hazard industries” were exempt from the requirement, but certain previously exempt businesses are now required to keep records and post information about workplace injuries. In addition, the new requirements mandate that all work-related fatalities be reported within eight hours, and all work-related hospitalizations, amputations, and eye losses be reported within 24 hours.

When OSHA issued the rule last January, the agency said the updated requirements would “enable employers and workers to prevent future injuries by identifying and eliminating the most serious workplace hazards.” The required workplace form postings will inform employees about all workplace deaths and injuries that occurred within the past year, and will give employees information about the hazards in their workplace. – Joshua Higgins (

Oregon Occupational Safety Agency Tackles Exposure Limits

Jan 14, 2016   //   by .   //   Federal, News  //  Comments Off on Oregon Occupational Safety Agency Tackles Exposure Limits
Oregon’s Occupational Safety and Health Administration will follow two different approaches as it updates permissible exposure limits in 2016, the state’s administrator says in a new agency newsletter.

Oregon OSHA administrator Michael Wood says in the newsletter that the agency will begin identifying ways to encourage employers to consider more up-to-date and protective reference levels for occupational exposure to hazardous materials, while criticizing the federal OSHA for failing to keep regulatory mandates updated.

“It is clear that federal OSHA will never be able to keep the regulatory levels sufficiently up to date, at least until a completely new approach is developed and adopted,” Wood writes. “But that does not mean that Oregon workers need to go unprotected.”

“The levels published by the National Institute for Occupational Safety and Health and the American Conference of Government and Industrial Hygienists are based on much more current exposure and health information, and even where they cannot be used for enforcement purposes, employers can be encouraged to consider them seriously as they make decisions about the protective measures they can put in place,” Wood adds.

In addition Oregon OSHA will address four to six of the most significantly outdated permissible exposure levels on a state level, bringing together toxicologists, industrial hygienists, and other professionals to offer advice on what chemicals are most unregulated or under-regulated and present the greatest risk to workers. — Joshua Higgins (

OSHA Gets Congressional Nod To Raise Maximum Penalties Based On Inflation

Nov 3, 2015   //   by .   //   Federal, News  //  Comments Off on OSHA Gets Congressional Nod To Raise Maximum Penalties Based On Inflation
House and Senate lawmakers passed a little-noticed measure that will effectively let OSHA hike maximum penalties by roughly 81 percent, in order to catch up with inflation since 1990, as part of their final budget compromise last week.

The legislative change means OSHA has the congressional go-ahead to issue an implementing rule that amounts to an increase in penalties for alleged willful, repeat and serious violations of OSHA standards. Safety and health activists have long sought such an increase. Annual adjustments going forward are also established.

Observers note that the agency does not always propose fines at the maximum levels, but has done so with more frequency under the Obama administration. OSHA has also used internal policy changes to increase overall penalty amounts without the need for legislation. That was achieved primarily by limiting penalty reductions and more closely studying employer histories when considering proposed fines.

Lawmakers inserted language into the sweeping budget deal that provides a fiscal framework for appropriators through early 2017. The section, called the Federal Civil Penalties Inflation Adjustment Act, amends a 1990 law of the same name to provide for a “catch up” adjustment and allow for annual adjustments based on cost-of-living increases.

OSHA’s maximum penalty for an alleged serious violation is $7,000; and for alleged willful and repeat violations is up to $70,000. The catch-up adjustment from 1990 levels will allow up to about $12,700 and $120,700 in proposed penalties by category, respectively, once the implementing rule takes effect.

The budget agreement, signed by Obama on Monday, directs that the catch-up adjustments occur by Aug. 1, 2016.

Safety and health advocates have long argued that increasing OSHA’s penalties would have a strong deterrent effect on employers. One open question, however, is how long it might take for OSHA to issue the rule and whether any controversial policies will be included, for example to codify the administrative changes to penalty policy that occurred five years ago.

One attorney and OSHA expert says the increases prescribed in the new law are significant. “That’s a big increase. I assume OSHA will put the full amount in effect,” the source says. “Some groups will say that’s excessive.”

OSHA will also likely put the rulemaking at the front of its priorities, the source suggests.

An OSHA spokeswoman said in an email Tuesday that with regard to timing “the agency is still studying the path forward on this issue.”

The bill directs the agency to promulgate the changes through an interim final rulemaking, which allows stakeholders to comment on the regulations while also fast-tracking them. An attorney says it would be highly unlikely for a court to second-guess the agency, given the clear legislative text. The situation might be different if the agency tries to exceed the intent of Congress, the source notes.

The act does contain exceptions language, however, that could allow stakeholders to influence the catch-up adjustment. The agency head could, after issuing the rule and accepting comments, adjust the amount of a civil monetary penalty by less than what otherwise would be required if determining that “increasing the civil monetary penalty by the otherwise required amount will have a negative economic impact;” or “the social costs of increasing the civil monetary penalty by the otherwise required amount outweigh the benefits;” and the Office of Management and Budget director agrees.

The initial increase in a civil monetary penalty must not exceed 150 percent of the penalty amount when the bill was enacted. OMB is also directed to issue guidance to OSHA and other affected agencies every year as to how the adjustments will be carried out. Agencies will be required to submit financial reports of the adjustments, and their compliance with the new law will also be subject to Government Accountability Office review. — Christopher Cole (


Workplace Violence Case Tests OSHA Use Of Guidance In General-Duty Citations

Oct 21, 2015   //   by .   //   Federal, News  //  Comments Off on Workplace Violence Case Tests OSHA Use Of Guidance In General-Duty Citations
An enforcement case before the Occupational Safety and Health Review Commission (OSHRC) will explore to an unusual extent the limits of OSHA using guidance documents as a legal basis for issuing penalties in circumstances like workplace violence where no specific standard applies, potentially affecting use of the OSH Act general duty clause.

Commissioners in a rare step have asked legal experts to weigh in specifically on OSHA’s use of guidance to enforce policy on prevention of workplace violence, as a health care employer challenges the agency’s citation under the statute’s broad Section 5(a)(1) requirement to provide workplaces free of recognized hazards.

Interested parties have until nearly the end of this month to submit first briefs on several questions, including the effect of OSHA’s guidance for health care and social service employers on preventing workplace violence. “It could have huge, huge ramifications,” one legal source tells Inside OSHA Online.

The review commission’s request for legal input comes in a Sept. 18 briefing notice following OSHRC’s direction for review in Secretary of Labor v. Integra Health Management Inc., which OSHA cited under the general duty clause after the fatal stabbing in Florida of a health service coordinator by an insurance company’s client, whom the parties stipulated was mentally ill. Integra’s health service coordinators are responsible for mental and physical health assessments on behalf of insurers, and for coordinating services.

The company challenged an OSHA general duty citation after the incident, which was upheld on review by an administrative law judge. Integra then sought discretionary review by the commission, for which the case was directed. There is no clear timetable for a review commission ruling, but the independent agency gave parties 40 days after the briefing notice to submit amici curiae, or friend of the court, briefs.

OSHRC asks the parties and interested amici to respond to these issues:

  1. “Does the general duty clause apply to the condition as alleged by the Secretary — the workplace violence hazard of ‘[Respondent’s employees] being physically assaulted by [Respondent’s clients (known as ‘members’)]’ alleged to have ‘a history of violent behavior’?”
  2. “If so, did the Secretary establish that Respondent or its industry recognized the hazard and that a feasible and effective means of abatement existed to materially reduce the hazard?”
  3. “In addition, the parties may address the effect, if any, of OSHA’s Guidance for Preventing Workplace Violence for Healthcare and Social Service Workers.”

OSHA’s citation against Integra invokes issues surrounding federal guidelines to prevent violence at work and to guide employers in what the agency sees as their broad legal obligations. In that respect the implications of the case review go beyond workplace violence, touching on even larger issues of whether guidance can be interpreted as binding, depending on the circumstances, and how far OSHA can go in wielding Section 5(a)(1) absent codified regulations.

OSHA issued the health care employer guidance on workplace violence this spring, saying employers should use the guidelines to develop appropriate workplace violence prevention programs, engaging workers to ensure their perspective is recognized and their needs are incorporated into the program. Industry looked at the guidelines with askance, however, particularly the suggestion that it could bolster general duty citations, and the Integra Health Management case could be the first high-profile matter to test the legal arguments on either side.

A management-side attorney with a specialization in health care-related OSHA issues says the review commission clearly intends to weigh in on the exercise of Section 5(a)(1). “I think this is OSHRC’s way of relaying their opinions about the liberal use of the general duty clause (and) how specific you need to be in describing the hazards,” says Valerie Butera of Epstein Becker Green. The commission also seems to express a willingness to analyze the legal issues of using guidance effectively as a standard when it comes to general-duty enforcement, she says. “OSHA has been acting as though it is for quite some time now.”

“If the commission finds a way to hold that these guidances cannot be relied upon in issuing citations, OSHA’s going to be in a mess of trouble,” she says, particularly considering that OSHA has appeared more inclined in recent years to invoke the general duty clause in touchy areas like workplace violence.

Most important to the regulated community is to have parameters for use of Section 5(a)(1) so that potential citations are more predictable, and that could be borne out by OSHRC’s eventual decision, according to Butera. “Right now it’s kind of Wild West. The general duty clause was not used this liberally before this administration,” she says. “I think that this briefing notice is something I would be concerned about if I were OSHA.”

The pivotal OSHRC review comes as federal OSHA works to compel employer attention to the risks of workplace violence, but also as state plan states, with California at the forefront, advance specific regulatory requirements tacking the issue.

Cal/OSHA is poised to release a draft standard for public review — by late November or early December, according to one informed source — that would address the risks of violence in health care settings. In the case of Cal/OSHA the issuance of a standard follows statute; California lawmakers last year passed a new mandate for a state standard which is supposed to be finalized by next June. That would put the state’s OSHA program far ahead of federal OSHA in terms of specific regulation on workplace violence that inspectors can cite. California’s effort comes on top of other regulations mandated by state law and tailored to the health care sector, including infectious disease safeguards and safe patient handling.

Federal OSHA currently has no comprehensive regulations on any of those issues, though it has commenced a rulemaking effort on infectious diseases in health care.

But federal inspectors have been targeting workplace violence in the absence of a standard, according to one union health and safety staffer, who says OSHA seems to be laying the groundwork for legally sound enforcement actions. “We’ve had probably half a dozen cases with workplace violence at facilities we represent where OSHA’s actually done good citations,” concentrated mostly in New York and New England, the source says.

OSHA has also made inroads by negotiating noteworthy corporate-wide settlements, like it did recently with the provider of health care services at the Rikers Island correctional facility, the source points out. “It’s a good example where OSHA was actually able to do something to deal with a really violent situation.”

The union staffer agrees that the conclusions that review commissioners reach in the Integra Health Management case could deeply affect OSHA’s current approach to encouraging and in some cases forcing employers to confront the risks, and says “if OSHA’s not allowed to go after those kinds of cases, or that kind of hazard, that’s certainly a problem in trying to deal with workplace violence.”

Organized labor at the same time believes regulatory actions like those in California may eventually put pressure on OSHA to pursue some kind of regulatory initiative, the source adds. “It’s what we should see at the federal level if the world were a better place.” — Christopher Cole (


House Republicans Challenge OSHA ‘Joint Employer’ Test, See Union Hand In Shaping Policy

Oct 21, 2015   //   by .   //   Federal, News  //  Comments Off on House Republicans Challenge OSHA ‘Joint Employer’ Test, See Union Hand In Shaping Policy
Congressional Republicans are pressing Labor Secretary Thomas Perez to release documents tied to the Solicitor’s Office drafting of contentious new guidelines for OSHA to decide if businesses should be treated as joint employers — effectively helping expand OSHA’s enforcement reach into franchises and similar business models — saying the policy leads OSHA astray from its core safety and health mission.

GOP leaders on safety and health oversight strongly suggest DOL formulated the guidelines in tandem with a forcefully contested National Labor Relations Board (NLRB) ruling having a similar effect on management-labor disputes. They seek answers from Perez about any collaboration that may have occurred with the labor board, which is structured to be an independent agency, and union officials.

Lawmakers also demand data from OSHA on any role Service Employees International Union (SEIU) may have played after backing an organized group that filed numerous OSHA complaints early this year against McDonald’s, a main target of unions not only on safety and health but other working conditions.

GOP members are escalating a fight that began this summer after NLRB’s decision in the closely watched Browning-v Ferris Industries case, in which the split board expanded the definition of a “joint employer” for purposes of labor law to include corporations such as franchisors. At around the same time a Labor Solicitor’s internal memo surfaced that instructed OSHA field staff on a list of topics investigators should explore in determining joint employer status for applicability of OSHA regulations.

Republicans saw a direct correlation. Sen. Lamar Alexander (R-TN), chair of the Labor Committee with OSHA oversight, suggested in a government affairs hearing that there might be a direct link between the controversial NLRB ruling and the leaked DOL memo. The subject came up during a wider probe of the Labor Department’s use of guidance documents to implement policy changes, though a Labor Department official told Alexander the solicitor’s memo was not a guidance document akin to those interpreting OSHA regulations.

House lawmakers followed up this month, with leaders of the workforce committee questioning Perez on whether any connections took place among OSHA, NLRB and SEIU on the joint employer determination. They argued the solicitor’s memo wanders far afield of the safety and health agency’s role and that OSHA already has a “robust multiemployer citation policy,” citing a 1999 agency directive.

“Now, without any public notice or warning, the Solicitor’s memorandum would instruct OSHA inspectors to delve into unrelated matters — financial and otherwise — far outside their expertise,” according to the letter from Reps. John Kline (R-MN), the committee chair, and Tim Walberg (R-MI), chair of the workforce protections subcommittee.

“Drifting further from the agency’s core mission, inspectors would have to consider ‘brand standards,’ menu and product creation, and the use of specific computer systems,” the lawmakers say. “Inspectors would consider these and other questions that move far beyond the ‘safety control’ factors OSHA currently considers before issuing a multiemployer citation.”

GOP lawmakers want a wide range of information, documents and communications records from the labor Department concerning the policy shift. Their demands come just weeks after the International Franchise Association filed a sweeping Freedom of Information Act request with OSHA regarding the joint employer determination.

OSHA and the Labor Department had no immediate comment on the GOP letter, with an agency spokeswoman telling Inside OSHA Online in an email Wednesday that “we have received the letter and are reviewing it.” Department officials did not respond to whether there had been any coordination with NLRB regarding the joint employer stance, and an official at the labor board could not be immediately reached.

SEIU’s press office did not respond to a call asking for comment.

Republican committee leaders want several sets of information from DOL by Oct. 27 — at least a week ahead of briefing congressional staff on their concerns — including:

  1. Factors OSHA inspectors currently must consider in citing multiple employers.
  2. All meetings between the Labor solicitor and any other department agencies, with related documents, concerning the multiemployer test.
  3. All meetings between the department and NLRB related to the policy change.
  4. All meetings between the department and stakeholders including SEIU, related to complaints the union made around March 16 (referring to the McDonald’s situation).
  5. DOL’s legal justification for the new policy under the OSH Act, including the difference between OSHA’s existing multiemployer policy and the new memo.
  6. A description of the timing and manner by which DOL will respond to the franchise group’s FOIA request.
    — Christopher Cole (


OSHA Pushes Back Confined Spaces Enforcement For ‘Good Faith’ Home Builders

Oct 13, 2015   //   by .   //   Federal, News  //  Comments Off on OSHA Pushes Back Confined Spaces Enforcement For ‘Good Faith’ Home Builders
OSHA has decided to give employers in residential construction three more months to fully comply with the agency’s confined spaces in construction standard as long as they are demonstrating “good faith” efforts to follow the new regulations, with OSHA setting specific guidelines for that determination.

Agency officials already once provided a two-month extension of the date to begin full enforcement of the standard, which industry has complained is too complex to meet under the final rule’s timetable. The rule in general has also faced litigation, but it was not clear whether the extension was related to the lawsuit.

OSHA recently posted a new enforcement memorandum from Jim Maddux, construction director, which outlined the latest enforcement policy on the standard published in May. The rule went into effect Aug. 3.

Officials earlier gave employers until Oct. 2 before issuing citations under the confined spaces rule if they met OSHA’s requirements for good faith efforts. That policy will now be extended through Jan. 8, but only for employers in residential construction work. Employers must be providing training to qualify for the extension.

“Before January 8, 2016, OSHA will not issue citations under the Confined Spaces in Construction standard to an employer engaged in residential construction work if the employer is making good faith efforts to comply with the standard, as long as the employer is in compliance with either the training requirements of the standard, found at 29 CFR 1926.1207, or the former training requirements found at 29 CFR 1926.21(b)(6)(i),” the agency says.

The earlier training requirement provided: “All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required. The employer shall comply with any specific regulations that apply to work in dangerous or potentially dangerous areas.”

Employers who fail to train their employees consistent with either regulation would properly be cited, OSHA says.

Factors OSHA will consider when evaluating good faith efforts include:

  • If the employer has not trained its employees as required under the new standard, OSHA will consider whether the employer has scheduled such training.
  • If the employer does not have the equipment required for compliance with the new standard, including personal protective equipment, OSHA will determine whether the employer has ordered or otherwise arranged to obtain such equipment required for compliance and is taking alternative measures to protect employees from confined space hazards.
  • OSHA will consider whether the employer has engaged in any additional efforts to educate workers about confined space hazards and protect workers from those hazards.

— Christopher Cole (


OSHA Awaits Budget Office Go-Ahead To Issue Electronic Recordkeeping Rule

Oct 13, 2015   //   by .   //   Federal, News  //  Comments Off on OSHA Awaits Budget Office Go-Ahead To Issue Electronic Recordkeeping Rule
OSHA took a key step forward in its regulatory plan to require larger companies to electronically report workplace injuries and illnesses, with the data later being posted to an online database, by sending the rule for White House review — a clear signal OSHA fully intends to issue the rule while time remains in the Obama administration.

Agency officials had earlier projected finalizing the rule in September; depending on the length of review by the Office of Management and Budget (OMB), regulators might not lag far behind their goal. But OSHA chief David Michaels told Inside OSHA Online after a Capitol Hill hearing Wednesday (Oct. 7) that “one can’t predict” when the rule might actually come out.

Litigation is almost certain over the rule once OSHA promulgates it, with industry saying it holds the potential to tarnish businesses based solely on incident reports, which they are already legally bound to record, by disseminating the information to the public when there has not necessarily been a safety violation. Industry says the agency lacks the legal authority to make the electronic records public.

Business advocates also say OSHA lacks the resources to properly review the reports and scrub them of personally identifying information before posting them to the web, which they see as a monumental burden on the agency. They compare the planned database to, the roll-out of which was peppered with problems even though the Health and Human Services Department had far more technical help than OSHA could muster.

Another criticism is that the rule could discourage workers from reporting injuries and illnesses for fear of backlash, and OSHA plans to add language to CFR part 1904.35 to clarify an employee’s right to report injury and illnesses to their employer without fear of retaliation.

OMB’s Office of Information and Regulatory Affairs received the final rule Monday (Oct. 5); that agency by convention generally has 90 days to review the package with a possible extension of 30 days. OSHA rules under the Obama administration, however, have been known to sail past those deadlines, and Michaels declined to project a ballpark date.

OSHA argues the rule will make a major difference in injury and illness data collection, furnishing the agency with a much more efficient means of targeting workplace hazards. “An updated and modernized reporting system would enable a more efficient and timely collection of data, and would improve the accuracy and availability of the relevant records and statistics,” OSHA says in the regulatory agenda.

It is unclear what revisions OSHA may have made after hearing stakeholder and public feedback on the proposed rule prior to sending it to OMB.

The earlier issued proposed rule would:

  • Require establishments that are required to keep injury and illness records under Part 1904, and had 250 or more employees in the previous calendar year, to electronically submit information from those records quarterly.
  • Require employers falling under the recordkeeping rule that had 20 or more employees in the previous calendar year, and are in certain designated industries, to electronically submit the information from the OSHA annual summary form (Form 300A) on an annual basis. The second submission requirement would replace OSHA’s annual illness and injury survey, authorized by current regulations.

Require all employers who receive notification from OSHA to electronically submit specified information from their Part 1904 injury and illness records. — Christopher Cole (


Agribusiness Groups Fight OSHA’s Process Safety Retail Interpretation; GOP Escalates Feud

Oct 8, 2015   //   by .   //   Federal, News  //  Comments Off on Agribusiness Groups Fight OSHA’s Process Safety Retail Interpretation; GOP Escalates Feud
A powerful coalition of agribusiness trade groups urged House lawmakers Wednesday (Oct. 7) to pressure OSHA into reversing course on a controversial interpretation of the agency’s rule to prevent chemical process disasters, just as congressional Republicans took OSHA to task for a field guidance they say vastly expands the rule’s reach without any formal avenue for public feedback.

OSHA chief David Michaels defended the interpretation, which changes the test for a “retail” exclusion under the rule, before a House subcommittee Wednesday, pointing out that OSHA issues scores of guidance documents every year and that the agency sought extensive public input on the new interpretation. The change arises from OSHA’s role in federal interagency efforts to close purported gaps in chemical safety regulations after the West, TX, fertilizer plant explosion.

The retail exemption memorandum is one of several related to the process safety management (PSM) rule that are the subject of federal lawsuits against OSHA, and Senate Republicans have also latched onto the issue of PSM guidance documents issued without notice-and-comment rulemaking. A Senate panel has formally asked OSHA to rescind the documents in favor of proposing them as rules.

OSHA in the retail exclusion memo effectively extended the PSM rule to numerous additional sites, costing tens of millions dollars in new compliance burdens, agriculture trade groups say. The contested memo, issued in July, indicated that OSHA in analyzing the PSM rule pursuant to the West, TX, response found that it had been wrongly interpreting the exemption by using a so-called 50 percent test, which classified establishments as “retail” if at least half their income came from end users. OSHA found that test was flawed because many businesses that sold chemicals in high volumes did not get covered. The agency changed policy so the exemption only covered sites that fall under the North American Industrial Classification System codes for retail employers.

That move caused an uproar, not only because of the impact of expanding covered employers, but by the way OSHA handled the policy change.

Agriculture groups — at least two of which are already suing over the new interpretation — are taking their case directly to Congress while the issue awaits judicial review.

“This change significantly expands the scope, complexity and costs for agricultural retail facilities that store or handle anhydrous ammonia, a critical nitrogen fertilizer,” the group of seven agribusiness groups tell lawmakers. “Any disruption in the supply of anhydrous ammonia at agricultural retail facilities will directly impact farmers’ operations as well as their ability to ensure adequate fertilization of their crops.”

“We believe that the failure of OSHA to properly consider the full impact on the agriculture sector dictates that this memorandum be withdrawn and subject to a formal notice and comment rulemaking,” they say.

The groups say more than 3,800 out of 6,500 agricultural retail facilities in the United States manage anhydrous ammonia and are now subject to PSM, but aside from a request for information under executive order, the agricultural sector was not formally consulted in advance of the policy change. “Additionally, OSHA failed to notify the agricultural industry once the rule change went into effect.”

Industry groups contend that taken together the costs to implement the change easily exceed the $100 million threshold to determine whether a regulatory action is “major,” thus requiring review.

“These significant costs come at a time of very low commodity prices, which affect both agricultural retailers and their farm customers’ business and bottom line,” they say. “Retailers are committed to compliance with all federal laws, and not only want to do the right thing but also want to do it in the right way. As such many will need several years to budget for facility upgrades of this magnitude.”

The six-month compliance period provided by OSHA “coincides with the busy harvest season and ammonia application season,” according to the coalition. “Many agricultural retailers also operate grain handling facilities and will have all available staff completely occupied with either harvest or grain handling operations. Harvest is quickly followed by the on-farm ammonia application season, when it is also nearly impossible to make upgrades. Under normal circumstances, upgrades to retailers’ ammonia systems are scheduled well in advance to ensure they do not interrupt important business operations.”

The groups say agricultural retail facilities that store or handle more than 10,000 pounds of anhydrous ammonia are already highly regulated under many federal and state programs.

Signatories to the letter, addressed to the chair and ranking member of the House workforce protections subcommittee, include: Agricultural Retailers Association (ARA); American Farm Bureau Federation; The Fertilizer Institute; National Association of Corn Growers; National Association of State Departments of Agriculture; National Council of Farmer Cooperatives; and National Grain and Feed Association.

A lawsuit pending in the federal D.C. Circuit Court of Appeals by ARA and The Fertilizer Institute challenges the validity of OSHA’s interpretation, calling it actually a legislative rule that did not go through notice-and-comment rulemaking under the Administrative Procedure Act. OSHA is not commenting on the suit.

The retail exclusion issue show no signs of subsiding, with not only the pending litigation, but lawmakers in both houses closely examining it. A Labor Department official recently defended OSHA’s process for interpreting the standard during a Senate hearing, and concern over the memo also arose during Wednesday’s House hearing, which was geared broadly toward OSHA priorities and performance.

Rep. Tim Walberg (R-MI), chair of the workforce protections panel, pressed Michaels on why the agency chose to characterize the document as a clarification of the standard. “Fundamentally these documents have changed the type of entities and drastically expanded, at least as I read them, the number of entities that are covered by the regulation,” Walberg said.

Michaels directly tied the interpretation to work carried out in the public domain after the West disaster. “The basis of this is understanding that after the explosion at the West fertilizer plant, President Obama issued a directive, an executive order, telling us to look at these issues and make sure workers are protected.”

“When you go back and look at the process safety management standard, it’s clear to us the standard was being misinterpreted,” he said. “Essentially what the standard said was that retailers were really identified as, for example, gas stations, entities that sell small amounts, keep small amounts of a material on site [and] should be exempted. But when we looked back at how that was being interpreted in one of our policies … the way we were doing this was clearly wrong.”

Michaels said the agency had received “tremendous public input” on the PSM standard and what the retail exemption means. “So it was no surprise when we put out this memorandum changing this interpretation.”

He said all three recent memoranda on how to interpret the PSM standard (two other documents, also under litigation, explain the standard’s applicability regarding chemical concentrations and use of generally accepted engineering practices) “follow the law very carefully.” — Christopher Cole (

OSHA Hits Recycling Plant With Fines As Industry Comes Under Growing Scrutiny

Oct 6, 2015   //   by .   //   Federal, News  //  Comments Off on OSHA Hits Recycling Plant With Fines As Industry Comes Under Growing Scrutiny
OSHA charges that an Illinois recycling company overexposed workers to lead and cadmium and violated several of the agency’s standards, with proposed fines totaling $114,800 — action that comes as worker advocacy groups call attention to safety and health issues in the recycling industry in general, with chemical exposures from breaking down electronics a central concern.

Officials cited Kuusakoski US LLC after inspectors determined the firm’s Plainville, IL, headquarters failed to implement engineering controls and monitor employee exposure to lead and cadmium, putting them at high risk for long-term damage to the central nervous, urinary, blood and reproductive systems. Alleged overexposures involved workers separating circuit boards, OSHA said.

A coalition of worker health advocates and NIOSH have also voiced concern about lead transference from electronics recycling into workers’ homes.

OSHA also cited the company for allegedly: failing to train workers on lead, cadmium and chemical hazards; not implementing a respiratory protection program; not having a hearing conservation program; failing to provide protective clothing; not providing showers or separate lunch facility to prevent lead contamination and ingestion; and lacking housekeeping procedures to remove lead and prevent employee exposure.

The company on Sept. 28 received 26 health citations classified as serious.

“Lead and cadmium can cause irreversible health damage, but Kuusakoski’s compliance programs lack information on controlling exposure levels and protecting workers through common-sense safety measures like wearing respirators and protective clothing,” said Kathy Webb, OSHA’s area director in Calumet City, in a statement Wednesday (Sept. 30). “The company must protect the long-term health of employees exposed to these dangerous metals.”

A person answering the phone at Kuusakoski said the company has no comment. — Christopher Cole (


Senators Want OSHA To Rescind OSHA Policies Issued As Guidance, Use Rulemaking Instead

Sep 24, 2015   //   by .   //   Federal, News  //  Comments Off on Senators Want OSHA To Rescind OSHA Policies Issued As Guidance, Use Rulemaking Instead
A key Senate panel on government oversight will formally request that OSHA rescind several guidance documents that have far-reaching implications for the agency’s rule designed to prevent chemical disasters, and then go back to the drawing board with a public rulemaking process, Sen. James Lankford (R-OK) tells Inside OSHA Online.

The request could come in the next two weeks, and Lankford, who convened a hearing Wednesday (Sept. 23) to dissect issues related to agencies using guidance papers to implement policy, says several lawmakers are discussing how to proceed after the Labor Department strongly defended OSHA’s procedure for issuing the documents.

At issue are three recent OSHA policies described by the agency as interpreting the process safety management (PSM) standard, which a set of covered chemical facilities must meet as part of efforts to prevent explosions — though it is still unclear which specific ones the lawmakers will target in the request. Each came up at Wednesday’s hearing, however, and are already the subject of litigation from industry.

OSHA issued three documents earlier this year clarifying regulators’ enforcement positions with respect to PSM: one that tightened the exemption for retail employers in the standard; another that interpreted the rule’s requirements on chemical concentrations; and a third affecting “recognized and generally accepted good engineering practices” (RAGAGEP). Industry in one form or another objects to each of the new policies, and some senators question why the Labor Department and its solicitor’s office chose not to use a process requiring public input.

Of concern at Wednesday’s hearing, according to lawmakers, was not the substance of the interpretations but rather how DOL went about issuing them.

Lankford, chair of the regulatory affairs panel of the Homeland Security and Governmental Affairs Committee, called OSHA’s documents “problematic guidance” as they appeared to impose new burdens and in some cases expand legal obligations outside of a rulemaking process.

“I do believe that agencies may issue guidance documents with the best of intentions,” he said, adding that in many cases the interpretations are valid from a regulatory point of view, but not properly issued. Documents from the Education Department also came into view, and Lankford contended the issue crops up in many agencies’ procedures. “This is something that is a serious issue,” he said. “This is not picking on two agencies.”

Using guidance instead of rulemaking faced bipartisan criticism, with Sen. Heidi Heitkamp (ND), the subcommittee’s ranking Democrat, needling the Labor Department over the controversial PSM standard interpretations. “Guidance is not, and should not be, substantive rulemaking,” she said. But Heitkamp also cautioned that guidance documents act as an important conduit for informational exchange among regulated entities and the government, and “any work that we do here must not chill that exchange.”

“We must ensure that there are seats for all interested parties at the table,” she said, adding that agencies must ensure that guidance is accessible to the public. A concern voiced at the hearing was that members of the public without regular interaction with an agency are unsure how to find all of the regulatory guidance materials pertinent to them.

A senior DOL official, without going into the technical content of OSHA’s interpretations, insisted each was properly vetted for compliance with the Administrative Procedure Act and Office of Management and Budget policy with respect to issuing guidance as opposed to a formal rule.

Mary Beth Maxwell, the department’s principal deputy assistant secretary for policy, said DOL often seeks public input before issuing guidance. She cited the recent publication for comment of a planned guidance carrying out an executive order on fair and safe workplaces, which affects federal contractors.

Maxwell pointed out that OSHA also issues guidance documents that are not formal standards interpretations, but provide expertise to regulated entities, as occurred during last year’s Ebola scare in which OSHA and partners released several publications to prevent worker infections.

Recent interpretations on PSM have either imposed less flexibility on employers or expanded coverage of the rule, all without a notice-and-comment process, Lankford argued. He pointed specifically to OSHA’s June 5 guidance on enforcement of the PSM standard’s RAGAGEP requirements, including how to interpret “shall” and “should” language in technical materials, and on the use of internal employer documents as RAGAGEP. The agency says enforcement activity, including OSHA’s National Emphasis Program on process safety in petroleum refineries, along with requests for assistance from the field, “revealed the need for guidance” on the RAGAGEP provisions.

Lankford also questioned OSHA’s June 5 enforcement policy on the concentration of a chemical that must be present in a process to determine whether the chemical is at or above the threshold quantity listed in Appendix A of the standard. OSHA says the revision falls under President Obama’s August 2013 executive order on improving chemical facility safety and security.

Both of those interpretations are the subject of litigation by industry, with the American Chemistry Council among employer groups filing lawsuits in the D.C. Circuit Court of Appeals. Also, the broader issue of companies using RAGAGEP remains entangled in legal review.

Another document questioned by lawmakers, and challenged by industry, is OSHA’s stricter interpretation of the retail exemption contained in the PSM standard, a move directly tied to findings under the executive order aimed at improving chemical safety. OSHA in the July 22 document threw out the so-called “50 percent rule” regarding volume of chemical sales to end users in determining applicability of the exemption, with the probable effect of widely expanding the rule’s reach. Sen. Joni Ernst (R-IA) said many worried constituents have brought the change to her attention, and she criticized the lack of public notice and comment.

OSHA has given employers an additional six months to comply with the new enforcement policy, and in that period says it will “focus its resources on providing compliance assistance to affected employers, engage key industry stakeholders, and will inform its State On-Site Consultation Projects that during this period, requests from newly covered employers should be their highest priority for receiving an on-site visit.”

OSHA will also exercise enforcement discretion during that time but may consider enforcement action to address what it considers immediate and severe danger.

Maxwell pointed out that OSHA published a request for information on process safety after the West, TX, chemical explosion and subsequent executive order, before rolling out the policy. Ernst argued that issuing such a request only supports the reasoning behind conducting a full rulemaking process.

Sen. Lamar Alexander (R-TN), chair of the Senate Health, Education and Labor Committee, which oversees OSHA, visited the subcommittee with his own questions to the Labor Department — principally on whether the agency plans to tell field investigators to obtain data from employers as suggested by the Solicitor’s Office in determining businesses’ joint employer status. A draft solicitor’s memo on the subject came out just as the National Labor Relations Board angered the business community last month by issuing a split ruling that expanded the meaning of joint employer. Alexander and House Republicans are trying to peel back the board ruling.

Maxwell said the solicitor’s memo was not a guidance, such as those discussed earlier in the hearing, but rather a set of questions for investigators to determine who had actual control over safety and health protections at work sites. — Christopher Cole (


OSHA Allows 30 More Days To Comment On ‘Volks’ Rule, Agreeing In Part To Industry Request

Sep 21, 2015   //   by .   //   Federal, News  //  Comments Off on OSHA Allows 30 More Days To Comment On ‘Volks’ Rule, Agreeing In Part To Industry Request
OSHA has decided to extend by 30 days the time period to comment on a planned rule designed to overcome a court decision holding that OSHA’s statute of limitations applies to the discrete occurrence of an injury or illness not being properly recorded, even if the log remains inaccurate within the five-year retention period.

An agency official told Inside OSHA Online on Monday that OSHA decided to grant additional time based on an industry request, making the new submission deadline Oct. 28. Otherwise stakeholders would have had to get their comments in by next Monday, a date they argued was difficult to meet because of the proposed rule’s impact.

Industry had, in fact, sought an extension of 60 days.

OSHA commenced the rulemaking after the D.C. Circuit Court of Appeals ruled in the Volks case essentially that an occurrence of an employer failing to maintain a complete, accurate record represents a singular event that starts the six-month limitation period within which OSHA can issue citations, even if the log remains inaccurate during the five-year recordkeeping retention period.

Agency officials strongly disagreed, and began crafting a rule to overcome the decision. OSHA put the issue on its regulatory plan in a rare agency attempt to overcome an appeals court ruling through new regulation — a separate legal question in itself, and perhaps the subject of future litigation over an eventual rule.

Industry representatives, led by a major construction group, contended that the Sept. 28 deadline to submit comments did not offer enough time to sufficiently analyze and offer feedback on the regulatory proposal, which OSHA announced in July.

The National Association of Home Builders (NAHB) in a Sept. 9 letter to OSHA requested a 60-day extension, pointing to what the group says are ripple effects of the proposal.

“As an interested stakeholder in this regulatory activity, NAHB is concerned that OSHA’s recordkeeping proposal will have an impact on regulated employers and small businesses, including home builders and specialty trade contractors,” the organization said. “Because of its broad impact, the [proposed rule] requires extensive legal analysis, as well as careful review and discussion by home builders, specialty trade contractors, and others to ensure they fully understand the possible ramifications and are given ample opportunity to respond.”

“NAHB does not request the 60-days of additional time lightly, considering the significant legal issues surrounding the proposed rule, we believe that an additional 60 days is a reasonable request that would not unduly delay the rulemaking process,” the group said, also noting that the agency previously granted a 30-day extension for responding to a planned electronic reporting rule.

 — Christopher Cole (


OSHA Obtains Civil Contempt Order, Alleging ‘Serial’ Violator Refuses To Pay Fines

Sep 8, 2015   //   by .   //   Federal, News  //  Comments Off on OSHA Obtains Civil Contempt Order, Alleging ‘Serial’ Violator Refuses To Pay Fines
OSHA has successfully pursued a civil contempt order against a small Maine construction employer over his alleged refusal to pay hundreds of thousands of dollars in OSH Act fines, as the agency comes under pressure to take the toughest enforcement actions possible against what safety and health activists regard as bad actors — but the owner accuses OSHA of simply continually harassing him.

Agency officials last month widely publicized a U.S. Court of Appeals order against businessman Stephen Lessard, whom the agency says has repeatedly refused to pay $405,000 in fines and interest stemming from alleged safety violations at his companies Lessard Roofing and Siding Inc. and Lessard Brothers Construction Inc., between 2000 and 2011. OSHA cited the employers 11 times at 11 different work sites in Maine over that period.

Since then Lessard has refused to pay the fines and accruing interest, even after the Labor Department obtained an order in U.S. District Court for the District of Maine in December 2011.

DOL asked the U.S. Court of Appeals for the First Circuit in Boston in February to hold Stephen Lessard in civil contempt for defying the 2011 order. The court of appeals entered a judgment finding Lessard in civil contempt of the 2011 judgment, ordering him to submit proof of correction for the cited hazards and pay $405,485 plus interest and fees to OSHA within 20 days.

If not he could face additional court sanctions, including prison. Lessard, however, maintains that he is not ignoring the court orders but has not been able to pay the fines.

OSHA’s New England regional administrator, Kim Stille, emphasized in an Aug. 24 news brief the legal ramifications of ignoring OSHA fines. “It’s critically important that employers recognize their obligation to take all appropriate steps to ensure the safety and health of their workers,” Stille said. “The refusal to do so places their employees’ lives and well-being at risk and the employers themselves in legal jeopardy.”

The region’s Labor solicitor, Michael Felsen, alleged that Lessard repeatedly flouted his obligations and violated standing court orders, and that the Labor Department responded by seeking, and obtaining, a contempt finding by the court of appeals that requires him to pay the fines he owes and comply with his safety and health responsibilities. “If he fails to take this finding seriously, the court has made clear he could find himself in jail until he does.”

Lessard, reached at a number for his business, told Inside OSHA Online he has no direct employees and is currently using a subcontractor to complete jobs, and he lacked the funds to pay the fines and interest. At the same time OSHA is staying on top of his every move, he contended.

OSHA in January cited Lessard for alleged egregious willful, repeated and serious violations for fall-related hazards and proposed fines of $287,000. “They’re harassing the hell out of me right now,” he said. “A lot of it’s unfounded. I’ve never had a fall off a roof, ever.”

Lessard, without specifically indicating how he would resolve the fines and contempt order, says OSHA earlier tried to impose an agreement on him that included the possibility of willful liability in future inspections, even though inspectors finding alleged violations was a near certainty. “Part of my complaint is that they want an agreement with me which I refuse to sign,” he said. “They’ve never come to a job and not found something.” — Christopher Cole (


OSHA Steps Up Ergo, Medical Oversight At Poultry Plants With Hazard Alerts, Citations

Sep 8, 2015   //   by .   //   Federal, News  //  Comments Off on OSHA Steps Up Ergo, Medical Oversight At Poultry Plants With Hazard Alerts, Citations
OSHA strongly signaled its continued intent to stem ergonomics problems at poultry plants using every angle possible — inspections, fines and warnings to the industry — most recently by issuing citations against a Delaware chicken supplier and then following up months later with a series of “hazard alert letters” calling for voluntary measures.

OSHA invoked a controversial subject that first came up early this year when the agency questioned the employer’s medical management practices on the work site and whether the company was effectively identifying musculoskeletal disorder (MSD) hazards through employee injury reports.

The employer, Allen Harim Foods in Harbeson, DE, forcefully pushed back against OSHA’s charge the company had paid little attention to ergonomics, an issue worker safety advocates view at the top of the list of occupational hazards in places like chicken processing facilities. Allen Harim bashed the OSHA actions, saying the employer takes worker safety “very seriously” and will contest the citations, which preceded the “alert” correspondence.

OSHA alleged Wednesday (Sept. 2) that during a probe OSHA inspectors identified deficiencies in the facility’s medical management program “that contribute to the likelihood of workers developing” serious MSDs.

“In addition to deficient staffing; inadequate supervision; lack of experience and training on the part of the healthcare providers; and providers working outside their scope of practice, the employer uses a first aid station to evaluate and treat MSDs,” the agency said. “Inspectors also found that the employer did not refer injured workers to qualified outside healthcare providers for evaluation and treatment when appropriate and that workers were discouraged from reporting symptoms and injuries.”

Erin Patterson, OSHA area director in Wilmington, said the Harbeson facility’s medical management practices “create an environment of fear and distrust.”

“The use of the first aid station to prevent injuries from being reported as required by law undermines the purpose of on-site treatment and leaves employees at risk of further injury,” Patterson said. “Discouraging workers from reporting injuries is unacceptable.”

OSHA homing in on a poultry processor’s in-house medical practices closely mirrors a similar warning to a chicken processor last year, suggesting OSHA has latched onto the approach. OSHA, just as in the Allen Harim case, identified problems that the agency believed existed within Wayne Farms’ medical management program — mainly with the upshot that in-house nurses did not properly record MSDs as OSHA-recordable injuries by instead treating them a first-aid incidents. That warning also came independently of citations.

Industry has fumed at OSHA’s controversial tactic of criticizing in-house medical programs as a way to tackle the MSD issue, arguing that sending workers who report MSDs directly to the hospital or outside medical care represents a faulty approach and gives short shrift to the usefulness of occupational nurses in helping reduce MSD risks.

OSHA’s recent hazard letters, sent in August, raised numerous objections to the way Allen Harim runs its medical management program, largely coming from advice supplied by the agency’s Office of Occupational Medicine and Nursing. That branch of OSHA provides medical expertise for the safety of OSHA’s own inspectors but also provides general medical expertise to enforcement and compliance staff. The letters detail a string of recommendations OSHA believes the company should adopt to more effectively report, record and refer possible MSD-type injuries.

The hazard letters are based on inspector observations and took place well after the inspections and ensuing enforcement. OSHA in June cited Allen Harim for a total of nine violations, including a serious citation for an alleged failure to address MSD hazards.

Allen Harim will fight the citations. “We take worker safety issues very seriously and we work diligently every day to provide the safest possible environment for all our employees,” the company said in a statement emailed to Inside OSHA Online. “We strongly disagree with the claims made in the citations. Accordingly, Allen Harim has exercised its right to challenge those citations. We have filed a notice of intent to contest them in their entirety, inclusive of classifications, penalties, abatements and abatement dates. This action will move through OSHA’s system and updates will be made available as warranted.”

The company, which employs more than 1,600 people in the United States, as well as more than 200 independent growers and 25 company farms, said it was disappointed to receive the separate hazard alerts. “Our team is currently reviewing the contents of the letters to determine if they warrant voluntary corrective actions on our part.” — Christopher Cole (


Solicitor’s Office: ‘Economic Realities’ Key OSHA Test Of Joint Employer Status

Sep 1, 2015   //   by .   //   Federal, News  //  Comments Off on Solicitor’s Office: ‘Economic Realities’ Key OSHA Test Of Joint Employer Status

Labor Department lawyers have drafted a policy for OSHA to determine whether a joint employer relationship exists between franchisors and franchisees that includes several key tests, including an analysis of “economic realities,” according to an internal document obtained by Inside OSHA Online.

The draft policy was devised in the run-up to a landmark decision reached Thursday (Aug. 27) by the National Labor Relations Board (NLRB) that will effectively result in franchising corporations being held partly responsible in OSHA and other labor law enforcement actions against franchise businesses. Sources say the contentious split ruling, long feared by large franchise enterprises, and DOL policy give OSHA a powerful new tool to widen enforcement against companies found to be joint employers.

Repeated efforts to contact the Solicitor’s Office produced no response. (Editor’s note: Following the publication of this article an official from the Solicitor’s Office contacted by declined to comment on the draft document, citing office policy.)

The draft policy addresses whether, for purposes of the OSH Act, a joint employment relationship can be found between the franchisor and the franchisee, leading both entities to be liable as employers.

“Ultimate determination will be reached based on factual information about the relationship between the franchisor and franchisee over the terms and conditions of employment,” the guidance states. “While the franchisor and the franchisee may appear to be separate and independent employers, a joint employer standard may apply where the corporate entity exercises direct or indirect control over working conditions, has the unexercised potential to control working conditions or based on the economic realities.”

The Solicitor’s Office (SOL) draft policy states that as a general matter, two entities will be determined to be joint employers “when they share or codetermine those matters governing the essential terms and conditions of employment and the putative joint employer meaningfully affects the matters relating to the employment relationship such as hiring, firing, discipline, supervision and direction.”

The following information should be obtained to reach the determination, SOL says: any franchise agreement and written document that addresses relationship; how the franchisee obtains the franchise; what the franchise submits to corporate; what fee the franchisee pays to corporate; whether the franchise pays a royalty or other compensation for the use of corporate’s trademarks and marketing system; whether the franchise has to agree to certain corporate conditions; and whether the franchise has to submit plans to corporate.

OSHA should also obtain information, according to the draft policy, on the franchise’s interaction with corporate; with whom the franchise interacts from corporate; whether corporate has any ownership interest in the franchise; whether corporate has any investment in equipment; whether corporate selects/approve the location of the franchise; whether corporate approves advertising the franchise uses; and what rules/policies corporate has on brand standards.

The draft policy also says OSHA should find out: whether after franchise is established, corporate does any kind of review; what kind of ongoing communions take place between the franchise and corporate; whether the franchise contacts corporate for any type of assistance after the franchise is up and running; whether the franchise is separately incorporated; whether anyone from corporate visits the franchise, and if so, what corporate does during its visit; and whether corporate provides manuals detailing how a franchisee should operate its franchise, including the best way to staff a franchise or define job responsibilities.

SOL’s draft further details that OSHA should determine: whether corporate provides a common set of operating procedures; whether corporate creates menus and/or products for franchisee to sell; whether corporate approves signage for the franchisee to use; and whether corporate requires franchise to use any specific computer system.

Also the draft policy says OSHA should gather numerous pieces of written documentation of corporate direction and control of the franchise; corporate control over the essential terms and conditions of employment of the workers at the franchise; and corporate control over safety and health policies and practices at the franchisee.

Already the draft solicitor’s guidance is drawing contention from industry, which is still determining the potential fallout from NLRB’s decision in Browning-Ferris that makes it easier for agencies like OSHA and Wage & Hour to go after large franchisors and could also help union organizing.

One legal source calls the draft policy “outrageous” and “way beyond” Browning-Ferris, saying the investigation into the economic relationship between franchisor and franchisee is outside the authority of OSHA. “Evening Browning Ferris studiously avoided the ‘economic realities’ test, mouthing the common law ‘right to control’ test.”

“When all is said and done, the only authority OSHA has is the investigation of franchisor control over the day-to-day working conditions of employees; does the franchisor, for example, affect whether the machines are locked out or guarded, how hot the boiling oil for French fries that may splatter is, etc. The rest of this stuff is grist for the union organization,” the source says in an email.

Also Thursday, the International Franchise Association filed a Freedom of Information Act request with OSHA that the organization said was “asking for the rationale behind questions OSHA inspectors are asking franchise owners, which appear specifically designed to presume a joint employer relationship between brand companies and local franchise small business owners.” — Christopher Cole (