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Cal/OSHA Settles Long-Running Farm Worker Suit Over Heat Rules, Revises Regs

Jun 19, 2015   //   by .   //   Federal, News  //  No Comments
California’s state OSHA program has settled a long-running dispute with farm workers’ groups over enforcement of the state’s heat standards, just as new regulations become effective aimed at addressing many of the concerns borne out by the protracted litigation.

The 10-year-old California heat illness prevention regulation has been lauded by proponents as an example of Cal/OSHA exceeding federal OSHA standards and enforcement, but has also been subject to criticism from worker rights advocates.

State health officials are billing the lawsuit settlement as boosting enforcement of heat standards for outdoor workers, according to an OSHA news bulletin. Cal/OSHA reached a settlement in two lawsuits, filed in 2009 and 2012, alleging failures to protect farm workers from heat illness and death. Those suits were filed against Cal/OSHA by individual farm workers, United Farm Workers, and UFW Foundation.

“Cal/OSHA and the United Farm Workers recently reached an amicable settlement of the Bautista lawsuit, which includes provisions for us to work cooperatively in addressing heat illness prevention at outdoor worksites throughout the state,” Cal/OSHA Chief Juliann Sum said. “That spirit of cooperation is strengthening and expanding Cal/OSHA’s enforcement and outreach efforts which have been ongoing since the heat illness prevention standard was made permanent in 2006.”

The rules were amended effective May 1. Cal/OSHA says the revisions clarify requirements related to the provision of water, rest and shade protections for all outdoor workers, which are detailed in Cal/OSHA’s guidance on the new requirements. Employer requirements under the heat regulation include: training for all employees and supervisors about heat illness prevention; provision of cool, fresh water as close as practicable to the work area at no cost to workers; shade provided whenever the temperature rises above 80 degrees Fahrenheit; and enough shade to accommodate the number of workers taking a break.

The regulations also require encouragement of employees on cool down rests and monitoring for symptoms of heat illness, as well as acclimatization to ensure that workers, especially new employees, safely adapt to increased temperatures during a heat wave.

Sum said acclimatization is critical to the health of all employees during a heat wave and employees who are newly assigned to high-heat areas. “The workers must be closely observed to ensure that their bodies adjust properly to the heat.”

Special high heat procedures are also required when temperatures reach 95 degrees and workers are at greater risk. Supervisors must take extra precautions at such times: Observing workers for signs and symptoms of heat illness holding pre-shift meetings on safety and reminding workers to drink water frequently; requiring that workers take a cool-down rest every two hours; and ensuring effective communication systems are in place so that emergency assistance can be summoned immediately if necessary.

Cal/OSHA’s renewed focus and the new attention given its heat illness strategy occur as federal OSHA devotes resources to getting similar messages out nationally. — Christopher Cole (ccole@iwpnews.com)

 

Cal/OSHA Stresses Heat Concern As Federal Officials Beat Drum Of ‘Water, Rest, Shade’

Jun 19, 2015   //   by .   //   Federal, News  //  No Comments
California’ state OSHA program is making a renewed push for heat illness prevention as temperatures are projected to soar in the southern region of the state, coming as OSHA simultaneously doubles down on its perennial campaign to inform employers and workers of measures to prevent heat exhaustion and stroke.

Federal OSHA held an annual press call with meteorological and other journalists urging them to include toughly worded advisories on the risks specifically to workers as they report on intense heat conditions. Media outlets are being strongly encouraged to share safety information for workplaces along with similar reports on protecting children and pets.

“Our safety message is three words — three simple words — ‘Water, Rest, Shade,'” OSHA chief David Michaels told reporters. “It can mean the difference between life and death.”

OSHA has a dedicated heat illness web page and is stressing the availability for download of its updated heat illness prevention app, which has been evolving for several years as OSHA increasingly studies how to help employers and workers monitor the heat. The app, called OSHA Heat Safety Tool, provided for Android and iPhone, allows workers and supervisors to calculate the heat index for their work site, and, based on the heat index, displays a risk level to outdoor workers.

Then, users can get reminders about the protective measures that should be taken at that risk level to protect workers from heat-related illness-reminders about drinking enough fluids, scheduling rest breaks, planning for and knowing what to do in an emergency, adjusting work operations, gradually building up the workload for new workers, training on heat illness signs and symptoms, and monitoring each other for signs and symptoms of heat-related illness.

“Working in full sunlight can increase heat index values by 15 degrees Fahrenheit,” OSHA says. “Keep this in mind and plan additional precautions for working in these conditions.”

Michaels noted that the country this year is already experiencing extreme heat events and that summer has not even officially started. OSHA has sponsored its nationwide awareness campaign in last five years, working with other entities including the National Oceanic and Atmospheric Administration and National Weather Service.

OSHA has been petitioned before to consider an emergency temporary standard when heat waves are pending and likely to put many workers at risk, with the last such campaign by Public Citizen several years ago, but Michaels indicated in the press call that the issue does not lend itself to the statute providing such authority.

Most of the general duty citations that have been issued by the agency as a result of heat issues at a work site have centered on employers not having plans in place, Michaels said, and “they have not taken any precautions at all” despite OSHA warning about the need for effective strategies.

A key consideration for prevention heat exhaustion and the far more dangerous condition of heat stroke, which can be fatal, is acclimatization for workers to the heat. The risk can happen to anyone, even seasoned workers who have been away from the heat for a week or more.

Cal/OSHA made a high priority of the issue just as the feds ramped up their campaign, with important timeliness considering that through next Monday, temperatures are expected to be 15 to 25 degrees above normal in southern California. The National Weather Service forecasts excessive hot and dry weather patterns in Imperial, Riverside and San Diego counties in particular, and northern California should be prepared for high heat as well, the state program said Tuesday (June 16).

California’s heat illness prevention rule, originally established in 2005, was amended effective May 1 to clarify requirements related to the provision of water rest and shade protections for all outdoor workers, which are detailed in Cal/OSHA guidance on the new requirements. — Christopher Cole (ccole@iwpews.com)

 

Whistleblower Manual Update Details Policy On Punitive, Distress Damage Awards

Jun 11, 2015   //   by .   //   Federal, News  //  No Comments
OSHA recently issued an update to its whistleblower enforcement manual providing further depth of information to field staff on how to approach two major issues — the awarding of punitive damages and determination of emotional distress as a result of retaliation — as well as detailing other policies such when to award front pay instead of reinstatement in rare cases where returning to the job would be impossible or unbearable.The guidelines affect a range of issues including merit determinations, damage awards and settlement talks. Specifically the agency revised Chapter 6 to provide updated guidance regarding remedies and settlement agreements.

OSHA’s overhaul to the manual, which had not been done since September 2011, also contains new references to whistleblower statutes enacted and now enforced by OSHA since the earlier publication.

OSHA administers 22 anti-retaliation statutes and has worked intensively under the Obama administration to elevate the program’s profile and effectiveness and address persistent concerns from worker advocates about programmatic dysfunction and case backlog.

The agency’s national office outlines policy about when it would be appropriate to award remedies and damages. “Damage awards should result from a fact-specific evaluation of the evidence developed in the investigation. Investigators should consult with their supervisors in designing the appropriate remedy,” OSHA states.

Regional solicitors of labor (RSOL) should be involved in determining potential remedies in any case that OSHA anticipates referring for litigation, OSHA says.

 RSOL and the national whistleblower protection programs directorate are available for consultation, however, on the proper remedies in cases where OSHA will be issuing merit findings but not referring the case for litigation. RSOL generally should be consulted before OSHA awards preliminary reinstatement, front pay, punitive damages, compensatory damages for non-pecuniary losses such as emotional distress, and any order to change or rescind a corporate policy. Chapter 6 also provides guidance for the effective negotiation of settlements and their documentation.

Legal experts note that OSHA has provided more detail than in earlier guidance on the award of punitive damages. Steven Pearlman and Amanda Wiley with Proskauer’s whistleblower defense group note in a recent law blog that, significantly, OSHA has included in the manual that employer good-faith efforts should be considered in deciding not to pursue punitive damages, which the agency says “may not be appropriate if the respondent had a clear-cut policy against retaliation which was subsequently used to mitigate the retaliatory act.”

They also note that the revised manual devotes two full pages to a discussion of emotional distress damages, which only got one paragraph in the earlier directive.

“Emotional distress is not presumed,” OSHA states in the updated version. “Generally, a complainant must demonstrate both (1) objective manifestations of distress, and (2) a causal connection between the retaliation and the distress. Objective manifestations of emotional distress include, but are not limited to, depression, post-traumatic stress disorder, and anxiety disorders. Objective manifestations also may include conditions that are not classified as mental disorders such as sleeplessness, harm to relationships, and reduced self-esteem.”

The attorneys point out that the Fourth Circuit Court of Appeals recently decided that emotional distress damages are available under the Sarbanes-Oxley Act, which contains provisions enforced by OSHA.

The concept of front pay is also a subject of discussion the new manual. Front pay in the context of settlement, according to OSHA’s definition, is a term referring to future wage losses, calculated from the time of discharge, and projected to an agreed-upon future date. “Front pay may be used in lieu of reinstatement when one of the parties wishes to avoid reinstatement and the other agrees.”

OSHA’s new manual, in another significant development, tells investigators to consider whether an employer should be required to provide whistleblower training to current employees and managers, the law firm notes in its analysis.

“In instances where the complainant does not return to the workplace, the settlement agreement should make an effort to address the chilling effect the adverse action may have on co-workers,” OSHA states in a discussion of training. “Posting of a settlement agreement or notice to employees, while an important remedy, also may be an impediment to a settlement. Other efforts to address the chilling effect, such as employer-provided training, may be available and should be explored.” — Christopher Cole (ccole@iwpnews.com)

 

 

OSHA Allows Shipping Stocks Of Older Hazcom-Labeled Containers As New Regs Take Effect

Jun 8, 2015   //   by .   //   Federal, News  //  No Comments
OSHA has adopted a new enforcement policy to provide manufacturers and importers leeway to move any containers in existing stock that have already been labeled in compliance with the 1994 hazard communication rule and are prepared for shipment — a move timed just as a key deadline for following the agency’s 2012 update to labeling and data sheet requirements for hazardous chemicals took effect Monday.Federal enforcement officials, in a May 29 memorandum obtained by Inside OSHA Online, outlined the interim policy following industry concerns that manufacturers and distributors, due to delays in receiving data from upstream suppliers needed to comply with the rule, would inevitably be holding large inventories of containers already labeled to meet the previous hazcom regulations, but not the new ones.

The rule also poses an ongoing compliance problem, industry worries, because the shelf life of products is much longer than the six-month compliance period to update labels and data sheets based on new data from suppliers.

OSHA is now clarifying that the containers in stock labeled before June 1 and compliant with the earlier rule may be shipped without being re-labeled, but companies must still provide the labels and safety data sheets (SDS) for each container to meet the 2012 requirements. The June 1 compliance date still applies to newly labeled containers, subject to an enforcement policy issued several months ago that allows “good faith” employers some short-term latitude in meeting the labeling requirements for chemical mixtures by the deadline.

Manufacturers or importers of hazardous chemicals, including businesses that repackage, “that have existing stock packaged (e.g., boxed, palletized, shrink-wrapped, etc.) for shipment prior to June 1, 2015, that are HCS 1994-compliant labeled, may continue to ship those containers downstream,” the memo states. “In such instances, there is no requirement to re-label packaged for shipment containers with HCS 2012-compliant labels.”

OSHA also states that plans for a revised hazcom directive have suffered a “minor delay in completing review and clearance” due to the agency’s efforts to ensure that additional clarification is included. That directive, now expected shortly after the June 1 deadline, will cancel the interim enforcement memo.

Business advocates earlier sought formal clarification from OSHA that already-packaged shipping containers of hazardous chemicals will be considered legally compliant, as long as they meet the older standard, for the life of the chemical product. A large manufacturer of products subject to the new hazcom (HCS) requirements, through industry legal counsel, asked OSHA in March to provide “confirmation” to expand on earlier guidance that OSHA plans to adopt a so-called “released for shipment” approach to container labeling.

The letter to OSHA built on subject matter that partly arose in a Feb. 9 enforcement guidance from OSHA on compliance requirements. Industry wanted it confirmed that if a shipped container holding a hazardous chemical was filled and labeled in compliance with the then-applicable hazcom requirements, that labeling “would be deemed compliant for the life of the product in that container.”

OSHA, even as compliance concerns arise on the standard issued in 2012, has already begun exploring another new rule to keep the U.S. system aligned with the evolving United Nations-devised Globally Harmonized System (GHS) of classifying and labeling chemicals.

The manufacturing employer wished to ensure a compliant transition from the 1994 to 2012 hazcom standards “and that compliance is not either unreasonably burdensome or infeasible, and does not impose a greater hazard on employees than extended adherence to HCS 1994,” according to attorney Lawrence Halprin, a Washington partner in Keller and Heckman.

“Our client’s primary concern is avoiding a situation where either our client formulator, or a distributor of our client’s products, is holding inventory of our client’s product with HCS 1994-compliant labeling after June 1, 2015 or December 1, 2015, respectively, and OSHA takes the position that the product may not be shipped by our client or the distributor unless the container is re-labeled with HCS 2012-compliant labeling,” Halprin told OSHA chief David Michaels. He adds that the Feb. 9 enforcement guidance “does not appear to address this issue.”

“Discussions with OSHA personnel and the fact that OSHA has not yet responded to the request for interpretation on this or a related issue filed by Council of Producers & Distributors of Agrotechnology (CPDA) confirm that understanding,” Halprin says.

The law firm, which represented the American Petroleum Institute in its pre-enforcement challenge to HCS 2012, noted that industries had earlier “strongly advocated” that OSHA adopt the two-stage approach adopted by the European Union for the GHS transition from the old to new standards, which entailed applying the new rules to substances during the first stage and mixtures in a second stage.

Industry moreover argued that uncertainty about compliance validated earlier concerns about the structuring of deadlines in hazcom 2012. “During the rulemaking, we also pointed out that there are multiple tiers of formulators that would take even longer to complete the transition,” Halprin says. “We believe it is unfortunate that, in adopting a single effective date for both substances and mixtures for phasing in compliance with HCS 2012, OSHA did not look to the expertise of either the affected chemical industry sectors or the expertise of its government agency counterparts in the 28 member countries that form the EU.”

The law firm says many formulators have chosen, as they have for many years, to continue to rely on their suppliers’ classification determinations and safety data sheets (SDS), as provided for in the standard, and that the regulations provide an employer with three months to update the SDS for a product from the time it receives “significant new chemical hazard information” regarding that product, while another paragraph provides an employer with six months to update the label for a product from the time it receives such information regarding that product. However, many stakeholders also erroneously viewed the standard’s “effective date” and “compliance deadline” interchangeably, leading to further confusion, the letter says.

It “seemed clear” that the receipt of the first HCS 2012-compliant data sheets from a supplier should be viewed as the type of information covered by those two updating provisions, and under that interpretation, formulators would have been required to have a compliant SDS and label in place by June 1 only if the formulator had received all of the SDS for the ingredients from the suppliers by Dec. 1, 2014, Halprin argued.

Thus, he said, if any of the suppliers’ data sheets were received by the formulator on June 1, 2015, the formulator would have been required to provide data sheets complying with the new standard for its product by Sept. 1, and labeling by Dec. 1.

However, no chemical supplier was required to provide hazcom 2012-compliant SDS to its customers until June 1, 2015, and many chemical suppliers would not provide them by that date; thus, based on application of the six-month trigger, formulators relying on their suppliers’ information would not be required to provide the new data sheets or labeling by June 1, 2015 and “quite likely not until some time in 2016,” Halprin said.

Downstream formulators relying on suppliers’ SDS “lacked adequate knowledge and control of the overall situation to implement a timely suspension or reduction in production that would avoid having too much inventory with HCS 1994-compliant labeling,” he said. “To take such a step with that uncertainty would risk an unacceptable loss of sales and/or customers and potential plant shutdowns and temporary layoffs that would potentially adversely impact manufacturing operations all the way up and down the supply chain. Accordingly, it was inevitable that manufacturers, as well as their distributors, would have product with HCS 1994-compliant labeling on hand long after the effective date for the HCS 2012 classification, labeling and SDS requirements.”

That means, depending on how OSHA chose to enforce the new rule, “the transition situation raised issues of infeasibility, internally inconsistent requirements, unconstitutionally vague requirements, and requirements that would generate a large amount of hazardous and non-hazardous solid waste, and would pose a greater hazard to employees than continuing to allow compliance with HCS 1994,” the letter argued.

Further, there are multiple tiers of formulators, which means it will take a number of updating cycles to achieve “full compliance” with the new standard, according to to the law firm, which said “the obligation to update labeling based on new information will pose a serious ongoing HCS compliance problem for any manufacturer with covered chemicals that remain anywhere in the chain of distribution for more than six months.”

“Each time a supplier sends an updated SDS to a formulator with new information requiring a change to the formulator’s SDS and label, there is a risk that products that are anywhere in the chain of distribution for more than six months will have outdated and non-compliant labeling,” the firm said. “The upstream manufacturer faces the same compliance dilemma.”

OSHA “could not possibly have intended,” according to the letter, to constrain chemical manufacturing in the United States so that a manufacturer and its distributors must choose among: never having inventory at its sites or anywhere in the chain of distribution for more than six months; if feasible, re-labeling the product; filing for a variance; or shipping product with non-compliant labeling.

The agency in its May 29 clarification memo indicates that since the February memo OSHA received “an overwhelming number” of additional questions and requests for further clarification on behalf of manufacturers, importers and distributors. — Christopher Cole (ccole@iwpnews.com)

 

OSHA Targets September For Publication Of Controversial Recordkeeping Rule

May 27, 2015   //   by .   //   Federal, News  //  No Comments
OSHA may be only four months away from publishing a long-promised and highly controversial rule to compel employers to submit electronic records of work-related injuries and illnesses, with the September date for the rule inked in the latest regulatory agenda only a month slip from the agency’s earlier target, leaving observers to speculate the Obama administration is determined to finish the rule but needs to iron out final technical details before publishing it. Issuance of a rule that closely resembles the proposed version would likely draw litigation from industry.The rule is designed to pave the way for OSHA to put worker injury and illness records on the Internet.

The executive branch on Thursday (May 22) released the spring 2015 regulatory agenda, which provides a rough blueprint of when the administration strives to complete the next steps on a wide variety of rulemaking initiatives. OSHA had earlier projected a completion date of August on the rule, but has now pushed it a few weeks to September.

OSHA’s slight change follows a brief re-opening of the rule’s comment period last fall. OSHA wants to disseminate injury and illness data in what the agency sees a way to better reveal specific hazards, but also faces resource challenges in how to handle the influx of electronic records and scrub them of personally identifying information about employees – a key point of criticism from the rule’s opponents.

Regulators re-opened the comment period last year because they decided to additionally propose mandated employer notifications to workers and strengthened whistleblower protections. Those proposed additions grew out of worries that the electronic data posting of information might lead employers to retaliate against employees who report injuries and illnesses.

OSHA touts its upcoming rule in the agenda, saying “[t]he collection of establishment specific injury and illness data in electronic format on a timely basis is needed to help OSHA, employers, employees, researchers, and the public more effectively prevent workplace injuries and illnesses, as well as support President Obama’s Open Government Initiative to increase the ability of the public to easily find, download, and use the resulting dataset generated and held by the Federal Government.”

Court challenges will almost certainly follow eventual issuance of the rule, largely because business advocates refute OSHA’s purported legal basis for the planned electronic dissemination of data. Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, tells Inside OSHA Online that the agency’s citation of legal authority from the OSH Act conspicuously does not include publicizing the data. OSHA in the agenda item derives its legal basis from the enabling statute’s provisions to “authorize the Secretary of Labor to develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics” (29 U.S.C. 673).

“Note the absence of the word ‘public,'” Freedman says. “Even OSHA’s own citation to their own legal authority to the rulemaking does not give them the authority to do what they are trying to do in the rulemaking, which is to put the information out and make it public.” The rule is “not permissible,” according to Freedman, who argued forcefully against the planned regulations in public hearings and calls it “completely unsupported by statutory language.”

Moreover OSHA is far too resource-constrained to handle the vast data flow resulting from the electronic filing requirements, he says, and points to OSHA’s acknowledgment in the public hearings that it was still contemplating how to grapple with records obtained through the web portal. “The detail on injury reports is going to be irrelevant to OSHA’s purposes [and] the utter massive – massive isn’t even a strong enough word – reports that are going to come into OSHA, they just physically will not be able the handle the number of reports.”

Freedman says the agency’s recent roll-out of new reporting mandates on hospitalizations, amputations and eye losses, and the resulting need for more resources, demonstrated the problem he describes and calls that a “dress rehearsal” for what the agency faces in terms of data from the proposed recordkeeping requirements.

OSHA’s one-month push-back of the target date could be suggestive of OSHA putting the finishing touches on the rule, sources say. Some of the lapse in issuing the regulations may result from OSHA “chewing on” feedback it received during last fall’s reopened comment period, Freedman says, and adds that instead of changing the agenda date to September, the agency could just as easily have just left it at August and been slightly late. Still, he says, “obviously this is a black box; we don’t know what’s going on behind the scenes.”

OSHA regulatory advocates agree that OSHA still appears on the cusp of issuing a rule, given just a month’s estimated extension. Matthew Shudtz, executive director of the Center for Progressive Reform, says despite the criticism OSHA can easily point to benefits of data modernization and accessible government in bolstering the rule. Modern data-sharing is part of “next generation compliance or enforcement,” he says.

“It’s a way for agencies to hopefully do more with less. In an era of shrinking budgets, agencies have to be more creative in using their authority or time,” he says, “and publicizing their information so they can leverage the resources of advocates and others …. is a smart policy choice.” – Christopher Cole (ccole@iwpnews.com)

 

Industry Backs ‘Abatement Before Citation’ Bill, But Says Right To Contest Should Be Preserved

May 12, 2015   //   by .   //   Federal, News  //  No Comments
Industry advocates are voicing strong support for a measure put forth by Rep. Vickly Hartzler (R-MO) to alter OSHA enforcement by letting employers sidestep citations for non-serious regulatory violations as long as the alleged hazards are abated during a “grace period,” but there is also concern that the bill if enacted might discourage employers from contesting citations they believe are flawed.Agreeing to abate citations for minor concerns if compliance officers are believed to be wrong on either the conditions in the facility or the relevant regulatory code, or both, could have the unintended consequence of setting up the employer for claims of “repeat” violations if OSHA comes around again, one attorney says.Hartzler’s bill provides for a period to abate alleged violations before OSHA issues proposed penalties that can run up to $7,000 each (see related story).

The measure amends Section 10(a) of the OSH Act by inserting the text: “No such penalty may be assessed for a violation that is determined not to be willful, repeated, or serious as described in section 17(k), during the period of time fixed for abatement of the violation in the citation issued under section 9(a) or final order issued under this section, as the case may be, and no such penalty may be assessed for such a violation if such violation shall have been abated by the employer in accordance with such citation or final order before the end of such time period.”

Hartzler calls the change a common-sense measure, but worker advocates wonder if the issue prompting Hartzler’s legislation may be illusory without more evidence that OSHA is using up scarce resources by nitpicking small violations.

One industry lawyer tells Inside OSHA Online the problem is real, and “that’s something I’ve been talking about for a long time. It makes no sense to pound people with OSHA’s interpretation of the statute with penalties” and then tell them OSHA has discretion authority over what to cite. “There’s a need for enforcement, but I think OSHA’s interpretation of the statute … is just flatly wrong.”

The attorney argues that OSHA need not cite up to its maximum penalties for non-serious violations and that there are many site-specific considerations when an inspector goes into a workplace. “You’ve got to take into account what’s going on in the place,” the sources says, but even then resources at OSHA are so constrained that “in reality we have to rely on voluntary compliance.”

A different attorney, Eric Conn, OSHA chair at the workplace safety group of Conn Maciel Carey, says Hartzler’s bill tackles “a real problem” and points to data showing that the percentage of “in-compliance” inspections, or those resulting in no citations, generally hovers around 25 percent. “When OSHA visits your facility there is a 75 percent chance they are going to issue at least one citation. They have to prove to their boss that they’re there,” he says, and that can mean “minor, trivial violations even if there is no real basis for it.”

Hartzler’s bill “creates a real incentive for employers to take abatement seriously,” Conn adds. “The purpose of the [OSH] Act and the purpose of OSHA is to help employees, and collecting penalties doesn’t help employees.” Still, Conn sees a bigger problem, saying, “OSHA too often inflates” how it characterizes infractions and thus, violations that “clearly” should be classified as other than serious, OSHA calls serious.

“I don’t think this is a huge deal,” he says, referring to the non-serious penalties. “Even though they can issue penalties up to $7,000 … you really never see that.”

Conn expresses concern, however, that the congresswoman’s bill could actually create a potential disincentive to contest flawed citations. That is because, he says, given the incentive of abatement without penalties, “you’re more likely to accept the violation that’s not valid,” thereby setting the employer up for repeat citations. “Perhaps the solution is that the bill allows for … preserving the right to contest a violation.” He suggests the bill be amended to permit employers to contest larger citations.

Steve Wodka, a labor-side attorney in Little Silver, NJ, expresses doubt that the problem cited by Hartzler rises to the level of requiring a legislative fix. “Federal OSHA simply doesn’t have the resources to go out and be citing the employer for minor things that, as the congresswoman says, don’t have any impact on worker health and safety,” he says. “There’s really an initial question here as to whether these things are going on” and whether OSHA is using limited resources effectively. Hartzler has contended that employers in her Missouri district see it as an issue.

“That’s really the first question, is this really happening, and if it is, OSHA ought to take those resources out there in Missouri and put them somewhere else where people are clamoring for inspections,” Wodka says.

Hartzler’s legislation awaits markup in the Education and the Workforce Committee. — Christopher Cole (ccole@iwpnews.com)

 

Final Rule On Confined Spaces In Construction Takes New Technologies Into Account, OSHA Says

May 5, 2015   //   by .   //   Federal, News  //  No Comments
OSHA says regulators have taken into account numerous new technologies available to building industries as it rolls out a rule adding a subpart to its construction standards to tackle confined space hazards much like the general industry regulations designed to ensure protections for workers in enclosed areas, but the rule differs in significant ways from the existing standards.

The rule — more than a decade in the making under both GOP and Democratic administrations — was published Monday (May 4) in the Federal Register, and takes effect 90 days later.

Many stakeholders have long sought standards that align construction safety codes with OSHA’s regulations for manufacturing and general industry, though agency officials point out that most building firms generally adhere to the latter in actual practice. The proposed rule had gone through two major iterations under the George W. Bush and Obama OSHAs since a small-business review took place in 2003. OSHA chief David Michaels said in a conference call Friday that the rule underwent “major rewriting” in the intervening years since the rule was proposed under Bush.

OSHA’s internal estimates are that the new rule could prevent 780 serious injuries and save lives of five construction workers every year. “We know that from this day forward, workers’ lives will be saved and injuries prevented by this new rule,” he told reporters in the call.

The construction rule largely mirrors the general industry regulations, but officials say differences between the parallel rules include that under the construction standard:

  • A “competent person” must conduct a job site evaluation on sites with potential confined space hazards, while other standards do not specify who must conduct the assessment.
  • Information exchange requirements inform employers of what discussions must take place prior to worker entry into confined spaces.
  • Air contaminant and dust monitoring must be done continuously in such work areas.
  • Employers must coordinate emergency services before workers enter the confined space.
  • The definition of “isolate” as applied to confined space hazards includes employers’ use of physical barriers to eliminate the opportunity for contact between an employee and a physical hazard inside a confined space.

OSHA says the new subpart replaces OSHA’s one training requirement for confined space work with a “comprehensive standard” that includes a permit program designed to protect employees from exposure to hazards associated with work in confined spaces, including atmospheric and physical hazards.

“The final rule is similar in content and organization to the general industry confined spaces standard, but also incorporates several provisions from the proposed rule to address construction-specific hazards, accounts for advancements in technology, and improves enforceability of the requirements,” OSHA states in the rule.

Michaels in the conference call said the length of time to issue the final rule, which was 12 years since review of the proposal under the Small Business Regulatory Enforcement Fairness Act, was taken up by major revisions to the rule. Particularly those occurred after the transition to the Obama administration.

The history of the rule is notable, he said, in that “we listened to our stakeholders, we received comments from many stakeholders,” some of whom suggested earlier proposals would complicate many work sites. “We revised the proposal to make it substantially similar to the general industry standard,” he said. — Christopher Cole (ccole@iwpnews.com)

 

Texas Democrat Renews Push For Injury Logs Covering Multi-Employer Sites

Apr 28, 2015   //   by .   //   Federal, News  //  No Comments
A House Democrat from the Houston area has re-introduced legislation mandating that OSHA require logs of workplace injuries across the entirety of multi-employer work sites, regardless of whether a contractor or other type of temporary staffing company directly employs the workers as opposed to the site-controlling employer.

Rep. Gene Green, the bill’s longtime sponsor, tells Inside OSHA Online the measure grows out of concern that even if contractors or temporary staffing firms are required to report such injuries, that information does not provide a full data picture of the injuries and illnesses incurred on a specific work site where several companies could be involved — including the owner or manager that runs the operations.

Industry sharply criticizes the proposal, saying it would create a system of redundant and possibly inaccurate data, as all the employers already fall under statutory and legal requirements to report injuries.

Green says he first introduced the bill after the disaster at BP Texas City, which is not located in his district but that took the life of one of his constituents. The accident revealed data gaps in that there was no site-specific log that would help determine hazards in a workplace with multiple employers, he says. “I’ve introduced this for a number of Congresses,” he says (see related story). “When I looked at the job site safety issues [it was found that] if you work for a contractor, it didn’t show up on that site.” It showed up on the contractor’s own OSHA logs, he notes, but existing practices did not make clear that “you also work at the direction of the company that owns that plant” and “we’ve had X number of incidents here.”

The congressman says he has spoken extensively with the United Steelworkers regarding the issue, but concedes that the proposal is unlikely to garner support from industry. The bill was originally wrapped into comprehensive Democratic-sponsored OSHA reform legislation early in the Obama administration that never made it past the House.

Green says he believes all injuries on the site should be compiled on one log because even if the injured worker is employed by another company than the site-controlling employer, “they’re also working under the authority of the owner or manager of the plant.” He says that would help OSHA and employers alike identify areas of concern, likening the concept to police setting up more speed traps in specific places where there have been high incidences of speeding. He says “it may be double-counting” but he still wants to see site-wide logs required under law.

Green’s bill requires that not later than 180 days after enactment, the Secretary of Labor shall revise the regulations in part 1904 of title 29, Code of Federal Regulations, “to require site-controlling employers to keep a site log for all recordable injuries and illnesses occurring among all employees on the particular site, whether such employees are employed directly by the site-controlling employer or are employed by contractors or temporary help or employee leasing services.”

The bill states that the term “site-controlling employer” in the bill “means the employer that has primary control over the work on a particular work site and supervises the employees on a day-to-day basis on a particular work site.”

An industry attorney bristles at the idea of OSHA creating another log to cover all incidents on multi-employer sites. “This bill interferes with contractual provisions that may relegate the responsibility for such recordation to employers other than the site-controlling employers,” the source says. “It also ignores the realities of some workplaces where the response to workplace injuries suffered by temporary employees is not in the hands of the site-controlling employer.”

“To the extent another employer is responsible for following up with the injured employee and updating his injury status, the type of log envisioned by this bill would be both redundant and inaccurate,” the lawyer adds.

Green, who does not serve on the Education and the Workforce Committee where the bill has been referred, acknowledges it would be an uphill climb to eventually get the legislation moving. “The last three Congresses now haven’t been sympathetic to worker rights,” he says. “I introduced it as a Democrat when we were in charge.”

The representative says he strongly favors the presence of large employers, including petrochemical facilities, in his district, but the benefits they provide must be balanced with safety concerns. “I like having those jobs but I also want them to be as safe as possible for them and the families,” he says. — Christopher Cole (ccole@iwpnews.com)

 

Worker Advocates Urge Feds, States To Ramp Up Criminal Prosecutions In Severe Safety, Health Cases

Apr 28, 2015   //   by .   //   Federal, News  //  No Comments
A national umbrella group of worker advocacy organizations on Thursday (April 23) urged federal and state law enforcement officials — including the Justice Department working in concert with OSHA officials — to increase the number of criminal prosecutions brought in severe safety and health cases, particularly ones involving fatalities and alleged willful violations of the OSH Act.

But legal experts say it would be difficult, at least at the federal level, for government attorneys to bring criminal cases under such circumstances while OSHA is simultaneously in talks with the employer or has already reached a settlement agreement that reduces violations, for example from “willful” to “serious.”

The National Council for Occupational Safety and Health (National COSH) released a report, “Not an Accident: Preventable Deaths 2015,” containing policy recommendations for federal and state officials to bring criminal charges where they believe warranted if an employer is alleged to have knowingly broken occupational safety and health laws. At the same time the advocacy group announced a new national database of fatal occupational injuries with detailed information culled from a variety of sources on what occurred in each instance. Initially the database will cover about one-third of all workplace fatalities in a given year.

National COSH argues that more must be done on the criminal prosecution side because OSHA civil penalties are too low and only viewed by many employers as a cost of doing business. Mary Vogel, the organization’s executive director, noted in a conference call Thursday that the median OSHA fine, after the agency pursues cases involving fatalities, ends up at $5,600 — an amount one advocate described as less than the cost of a used car. “Clearly those fines are not a deterrent or impediment to employers,” Vogel said.

“Under the OSH Act, even criminally negligent behavior by employers can only result in a misdemeanor prosecution,” states the advocacy group’s policy platform, issued ahead of Workers Memorial Day. “Penalties and administrative procedures must be strengthened to ensure that employers are adequately penalized for putting workers in harm’s way.”

“State and federal prosecutors should aggressively pursue criminal indictments when evidence shows willful intent by employers whose actions — or inaction — caused death or serious injury to workers,” the platform says. “State legislatures and the U.S. Congress should create a legal framework to hold corporations and executives accountable for criminal violations of health and safety laws, and eliminate barriers to successful prosecutions.”

Safety and health activists have long sought tougher penalties and a stronger criminal prosecution structure under the OSH Act as part of comprehensive OSHA reform, but in the absence of congressional action are directly asking federal and state attorneys to independently pursue criminal cases where they find such action warranted.

Bringing criminal prosecution need not depend necessarily on OSHA pressing a “willful” violation, though that strengthens a case significantly, Vogel said in the conference call. Sometimes OSHA will agree to reduce alleged violations from “willful” to “serious” in the course of talks with the employer, as occurred recently with settlement of the OSHA citations against the Williams Companies, where a deadly explosion occurred at a Geismar, LA, olefins plant (see related story). A Williams spokesman recently told Inside OSHA Online that the company “cooperated in a full and transparent manner with the investigation” by OSHA and settled citations stemming from two incidents in 2013. “These settlement agreements with OSHA bring closure to this phase of our post-incident recovery, and we continue to work diligently to further enhance safety at the Geismar plant and across our entire organization.”

Vogel said National COSH is actively working with local district attorneys and other prosecutors, urging them to bring whatever criminal charges are appropriate in OSHA cases. “It’s the employer’s responsibility to provide a safe and healthful workplace.”

Advocates pointed to two recent cases in which prosecutors brought charges, most notably the criminal indictment of Don Blankenship, former CEO of Massey Energy, which oversaw work in West Virginia’s Upper Big Branch mine where 29 miners died in a 2010 explosion. Blankenship’s trial is this summer. Also National COSH pointed to the charges against the film director in Georgia overseeing the set where a camera assistant was killed by an oncoming train last year. Advocates say, however, that such cases are far from the norm even in egregious circumstances.

OSHA actions to settle cases and reduce penalties complicate any potential criminal enforcement, an industry legal source tells Inside OSHA Online. The concept would be bringing a charge independent of the OSHA action, and “an element of proof in that separate case would be that the employer willfully violated an OSHA standard and that violation directly caused a worker fatality,” says Eric Conn, OSHA chair at the workplace safety group of Conn Maciel Carey.

Even if OSHA reduced citations “a prosecutor could decide to bring a charge and separately attempt to prove willfulness in that criminal proceeding. Practically speaking that scenario is very unlikely, because the Justice Department pursues these cases on referral from the Department of Labor.” It would be unlikely for OSHA to pursue a civil settlement while simultaneously referring the same case to federal prosecutors, he notes.

Also, Conn says, “almost universally, civil OSHA cases are stayed if the Department of Justice is even exploring the possibility of bringing a criminal charge.”

However, there have been and there continue to be state criminal prosecutions that have proceeded out of an incident and an OSHA enforcement action, but which are not tied to OSHA’s civil case, he notes. Those are generally brought under state criminal statutes, like negligent homicide. “In my experience, federal OSHA would not engage in settlement discussions if the Department of Justice was even exploring the possibility of bringing a criminal charge,” Conn says. “There’s an openness in settlement discussions that is anathema to being a potential criminal target.”

More aggressive pursuit of criminal cases is only one of many recommendations in the National COSH policy platform, including:

  • “Federal OSHA and worker advocates should hold state OSHA programs to strict standards to ensure that their enforcement efforts are at least as effective as federal OSHA, as required by the federal OSH Act. Many of these programs have failed to live up to this promise and must be held accountable.”
  • “OSHA must take action to ensure that workers who speak up for job safety and health are protected from retaliation. State legislatures should also pass strong whistleblower laws that provide additional protections for workers.”
  • “A proposed rule on limiting worker exposure to deadly silica dust has languished for years in the standard -setting process. This standard should be adopted to ensure that no more workers die of silica-related disease.” (See related coverage.)
  • “Advance legislation to establish a comprehensive chemicals policy grounded in the fundamental principles of precaution, substituting safer alternatives and right-to-know.”
  • “The U.S. Department of Labor should compile a complete listing of workplace fatality cases, with all relevant information, including names of workers on a publicly available website.”
  • “Workplace Violence Prevention Programs should be required in every worksite, including written protocols, training and protections to safeguard against, prepare for and reduce the risk of workplace violence.”
  • “Federal agencies and state and local governments should adopt policies for the awarding of contracts for public works projects to ensure that only responsible employers with effective safety and health programs are awarded contracts.”
  • “The U.S. Workers’ Compensation system must return to its original mission: providing medical care and income support to workers injured on the job. … A state-by-state and national policy framework is required to insure prompt and certain payment to injured workers and their families. Decisions about medical care must be determined by workers and their health care providers, without interference from employers or insurance companies.”
  • “The Centers for Disease Control [and Prevention] (CDC) must incorporate occupational health and safety issues in its assessment of potential burdens of disease and other outcomes resulting from the impacts of short and long-range climate projections.”

National COSH further advises that policymakers address ergonomic concerns in health care, saying a major source of injury to health and personal care workers is musculoskeletal disorders. The group urges “patient handling with safer methods using equipment to lift, transfer and reposition health care patients and residents.” — Christopher Cole (ccole@iwpnews.com)


 

Cell Tower Deaths Lead To New Reg Priority As OSHA Pushes Issue With Stakeholders

Apr 28, 2015   //   by .   //   Federal, News  //  No Comments
OSHA continues to hone its enforcement and regulatory emphasis on fatalities and severe injuries in communication tower building and maintenance, with Deputy Assistant Secretary Jordan Barab on Tuesday saying the agency has observed “an alarming increase” in fatalities in the fast-growing industry and assuring safety advocates that OSHA has become deeply engaged in the issue.Agency officials are currently seeking public input on a wide-ranging request for information (RFI) about what potential standards OSHA might pursue that address cellular tower safety concerns (see related story). OSHA also has formed partnerships with industry and the Federal Communications Commission — the chief regulator of communication towers — to develop safety programs to protect workers, especially from deadly falls (see related story).

Barab said during a Workers Memorial Day commemoration at the Labor Department that with continuously improving technology, the country is seeing a rapid increase in the number of cell towers going up, and that increases the attendant risk. “We certainly understand the importance of this industry, but we don’t think that workers’ lives should be sacrificed for the sake of a better cell signal,” he said.

OSHA has previously noted that in order to erect or maintain communication towers, employees regularly climb heights from 100 to 2,000 feet, and has cited the risk of falls, structural collapses, electrical hazards, and hazards associated with inclement weather.

The agency recorded 13 communication tower worker deaths in 2013 — the deadliest year for those workers since 2006 — and last year, 12 workers were killed, double the number of deaths in 2011 and six times the total number in 2012, according to OSHA.

OSHA officials appear confident in eventually crafting a rule specific to cell tower safety, having already launched the effort through the tentative move of issuing an RFI earlier this year. “This is the first step in what will likely become a regulation” that protects communication tower workers, Barab said.

Regulators are seeking information from tower workers, wireless carriers, engineering and construction management firms, tower owners, and tower construction and maintenance companies about the causes of employee injuries and fatalities, and to share “best practices” used by workers and employers in the industry to address hazards.

The Workers Memorial Day presentation at DOL included Kathy Pierce, the mother of a communications tower worker named Chad Weller, who died from a fall while working on a cell tower. She decried what she said was OSHA’s low fine of $4,750 following the accident, and also that the company involved was trying to negotiate a reduced figure. Also Pierce criticized a culture of long work days for tower workers, which she says leads to exhaustion and in turn a hazard.

OSHA’s communication tower RFI has generated more than two dozen responses from stakeholders, many with suggestions about what OSHA should include in a potential rule as specific safety requirements. For example, one respondent, a tower manufacturer, indicated that internal climbing ladders are preferable to step bolts, and not much more expensive; and that platforms should be required at every antenna level.

“The single most effective way to reduce accidents on towers is to enforce the requirement that the owners provide workers with a safe workplace. Many of the towers we climb on today are death-traps,” the respondent said. “Dozens have died when they were hooked off to a step bolt while working and their hook slips over the end.”

“The cellular mounts that support the cellular antennas are, without a doubt, designed by someone that has never climbed on a tower in their life or been involved in construction in any way. There should be a mandatory work platform at every antenna level, and the antenna needs to attach to the platform handrail,” the stakeholder said. “The workers need access to service these antennas and no man should have to hang underneath an antenna, 300′ in the air, to hook up or service antennas.”

Not all of those commenting seemed to agree with the notion that cell tower accidents are predominantly the employer’s fault, with one representative from a telecom firm saying “personal accountability” by tower workers must be a central part of avoiding cell tower injuries and deaths.

“When you look at the cause of many deaths from falls, it points directly at the individual free climbing and not being 100% tied off. The decision to ignore safety measures in the name of speed is the (individual’s) sole decision. I have never heard of a technician being fired or disciplined because they took longer to do the job safely,” according to the comment, which pointed to a key role for employers as well.

“Companies from the provider to the subcontractor need to be on the same page when it comes to safety practices. They need to encourage all workers to think ‘safety first’ and give them the time to utilize the proper safety measures,” the stakeholder said. “As for accountability, the only way to enforce the compliance of safety policies is to observe, educate, and fine if applicable. In order for OSHA to do this, they would have to employ experienced safety auditors or subcontract to companies that can provide this service. Inherently employees will begin taking safety shortcuts to increase their productivity until it becomes more of a habit than a time saving tactic.” — Christopher Cole (ccole@iwpnews.com) 

 

Citations Against Fracking Supplier Highlight OSHA Concern On Chemical Safety

Apr 21, 2015   //   by .   //   Federal, News  //  No Comments
OSHA’s recent citations against a New York supplier of plastic balls used in hydraulic fracturing, alleging process safety management (PSM) violations and other hazards, appears to underscore the agency’s heightened attention to safety in the large-scale use of chemicals, with one OSHA official lodging concern about the storage or use of more than 1,000 pounds of formaldehyde. The citations also allege combustible dust dangers, a key issue OSHA has tried to regulate.The agency began investigating A. Hyatt Ball Co. Inc. plant in Fort Edward in October 2014, in response to complaints, with inspectors identifying 48 alleged violations of workplace safety and health standards, resulting in $105,200 in proposed fines issued this month. OSHA’s Albany area office initiated the probe.

OSHA has been under pressure in recent years to address safety in chemical storage and usage, and co-chairs a multi-agency task force on chemical facility safety and security created by executive order after the massive West, TX, fire and explosion at a fertilizer processing plant (see related coverage). Agency chief David Michaels recently emphasized the issue, noting in an OSHA staff meeting that OSHA’s budget request for fiscal 2016 includes an increase of more than $5 million and 23 staff members to implement President Obama’s Improving Chemical Facility Safety and Security Executive Order.

Funds would also be used to “modernize” OSHA’s PSM rule and other chemical-related standards, and to develop guidance materials and strengthen enforcement efforts at chemical facilities, he said.

OSHA is currently exploring a potential rulemaking to revise the federal PSM regulations (see related story).

A. Hyatt Ball manufactures custom-sized resin balls used in the petroleum industry, according to an April 13 OSHA statement. “Our inspection identified a disturbing number of violations. A. Hyatt Ball lacks basic safety and health programs to prevent fires, explosions or an uncontrolled release of highly hazardous chemicals, including formaldehyde, which has been linked to cancer and can cause allergic reactions to the skin, eyes and respiratory tract,” said Kim Castillon, OSHA’s area director in Albany.

“The ball manufacturing process requires the storage and use of up to 1,900 pounds of a flammable formaldehyde solution,” Castillon said. “When storing or using more than 1,000 pounds of formaldehyde in a chemical process, the company has a responsibility to protect its employees with an effective Process Safety Management program.”

OSHA claimed that the plant lacked such a program, and alleged the presence of combustible resin dust; flammable liquids improperly stored and transferred; no audible fire alarm and fire-suppression system; and locked and obstructed exit routes. “All of these violations increased the risk of employees being killed, injured or unable to escape from a fire or explosion,” OSHA said.

“Protecting its employees must be an active, ongoing process for A. Hyatt Ball,” Castillon said. “The company must correct not only the chemical, fire and explosion hazards, but also the wide range of violations that expose its employees to falls, crushing injuries, chemical burns, lacerations and eye and face injuries.”

 An official with A. Hyatt Ball did not respond to a request for comment by press time. — Christopher Cole (ccole@iwpnews.com)

 

OSHA Continues Roll-Out Of Inspection Weighting, With Partial Focus On Health, Ergo

Apr 21, 2015   //   by .   //   Federal, News  //  No Comments
OSHA is pushing ahead with an effort to refocus scarce investigative resources toward priority areas through a data-driven system the agency calls “inspection weighting,” which uses historical data to allocate “enforcement units” for carrying out labor-intensive inspections — an approach some in industry consider a creative approach to ensuring the agency sets aside resources for complex probes instead of simply racking up inspection numbers.Agency chief David Michaels recently told OSHA staff at an all-hands meeting that “it is obvious to all of us that all inspections aren’t equal — in the amount of time and resources they take to conduct. For example, health inspections, involving chemical exposures or ergonomic hazards are particularly resource-intensive.” That is why in the past year, he said, “we have continued to work on a new inspection weighting system that takes these differences into account.”President Obama’s fiscal 2016 budget request includes program increases of more than $22 million and 90 full-time staff for OSHA, for a range of initiatives, Michaels noted.OSHA’s budget request for next year notes that the enforcement weighting initiative was first piloted in fiscal 2014 and continued in fiscal 2015. “As the agency conducts more complex inspections, it is important to accurately capture the resources used to conduct such inspections. Therefore, OSHA has established a system that uses historical data to estimate ‘enforcement units’ (EUs) for enforcement activities (e.g. process safety management inspections, musculoskeletal disorder inspections or activities resolved by OSHA’s complaint resolution process).” An OSHA enforcement activity, such as an inspection, fits into a specific category and is assigned a specific number of EUs.

For example, a process safety management (PSM) inspection will receive more EUs than a traditional safety inspection, according to the request. “The EUs vary for each enforcement activity based on the weighting resources used. OSHA will use the enforcement weighting system and EU estimates to better identify and track how resources are used to conduct a variety of enforcement activities and forecast the resources it will need for the future.”

The system also will allow OSHA to account for and shift resources towards more complex hazards and provide greater protections to workers, the agency says.

OSHA says in fiscal 2016, with refined EU inspection count data and as OSHA “perfects EU inspection count estimates,” it plans to increase its EU inspection estimates by 3,000 more than the fiscal 2015 EU inspection count.

The undifferentiated inspection goal will “increase slightly if at all” for future fiscal years, according to OSHA. “In fact, the (goal) could decrease from the previous fiscal year, but the EU inspection count goal could increase, ensuring OSHA’s resource use and impactful inspections keeping American workers safe and healthy on the job.”

An industry attorney tells Inside OSHA Online that the system tackles a central problem, as OSHA has struggled in the past with the expectation that the agency conduct numerous inspections so that it would have a greater presence and theoretically increase its impact. “The problem this caused was a tendency for the agency to focus more on simpler and often less hazardous industries and conduct simplified inspections to keep its numbers up. This practice created a lack of available compliance officers to conduct more complex and time-consuming inspections that were more likely to involve more significant hazards such as process safety management and musculoskeletal issues.”

“OSHA has been creative and aggressive in finding ways to reach these hazards during the Obama administration and the enforcement weighting initiative is a perfect example of that,” the attorney says. “Since 2014, OSHA has been using the system to better identify and track how resources are being used and how they should be used going forward. This has allowed OSHA to shift resources towards more complex hazards and target employers whose employees are more likely to encounter significant workplace safety and health risks.”

But a former OSHA official argues that devising such an internal process is unnecessary as long as field staff prioritize inspections based on statutory requirements in the OSH Act, because once those issues are addressed there are scant resources left to allocate. The source does note, however, that it is very difficult for area directors to determine how to allocate resources with the agency’s limited funds and field staff.

“They have certain things they’ve got to do” regardless of the weighting system, the source notes: imminent danger allegations; fatalities and catastrophes; and formal complaints. “After that comes the high-hazard list. You can make determinations” of what to prioritize within that category, but those funds are severely constrained, the source says.

The source points out that OSHA is in a resource bind after it conducts the inspections that it must under the statute, and agrees that field staff face difficulties in deciding which further ones to pursue. “What happens is, the offices are in such pressure, unofficial pressure, to do inspections and to find violations, they want to go to those areas where they can get a lot of inspections and find violations at the same time,” the source says. “In reality that’s what happens.” — Christopher Cole (ccole@iwpnews.com)

 

Health, Safety Regulatory Concerns Arise In Talks On Dispute Settlement Provisions Of Trade Deal

Apr 8, 2015   //   by .   //   Federal, News  //  No Comments

Public interest groups are raising alarm about the global safety, health and environmental enforcement implications of a developing trade agreement and whether a controversial section of the accord could put the public at risk by allowing investors to skirt regulatory mandates in countries participating in the deal.

At issue is the emerging Trans-Pacific Partnership (TPP) and the scope of its investor-state dispute settlement (ISDS) mechanism, which public interest groups are deeply concerned would permit companies overseas to avoid individual countries’ regulations. The issue has also garnered the attention of Sen. Elizabeth Warren, a key Democratic lawmaker on consumer and trade issues, who recently slammed the settlement provisions.

A purported text of the investment chapter recently published by Wikileaks reveals that negotiators have reached consensus on nearly all of the chapter’s provisions except for the scope of the ISDS mechanism and the extent to which signatories would be allowed to restrict capital flows in order to mitigate a financial crisis, Inside U.S. Trade reported in late March, signaling that the potential signatories including the United States are getting closer to a deal on the chapter. The text was dated Jan. 20 and leaked March 25.

Warren suggested in a recent conference call with reporters that the ISDS mechanism could allow foreign corporations to undermine U.S. health, safety environmental and labor laws. The Alliance for Justice, which organized the call, at the same time released a letter from 90 law professors opposing ISDS because it would undermine “the rule of law and the nation’s sovereignty.”

ISDS proceedings lack many of the basic protections and procedures of the justice system normally available in a court of law, and there is no appeals process, the lawyers told U.S. officials. “There is no oversight or accountability of the private lawyers who serve as arbitrators, many of whom rotate between being arbitrators and bringing cases for corporations against governments. The system is also a one-way ratchet because corporations can sue, forcing governments to spend significant resources, while governments impacted by foreign corporations cannot bring any claims.”

“In recent years, corporations have challenged environmental, health, and safety regulations, including decisions on plain packaging rules for cigarettes, toxics bans, natural resource policies, health and safety measures, and denials of permits for toxic waste dumps,” they added. “Hundreds of cases have been filed against approximately 100 governments over the past few years. ISDS threatens domestic sovereignty by empowering foreign corporations to bypass domestic court systems and privately enforce terms of a trade agreement. It weakens the rule of law by removing the procedural protections of the justice system and using an unaccountable, unreviewable system of adjudication.”

U.S. trade officials dispute the notion that ISDS gives foreign corporations the advantage that ISDS opponents describe. The office of U.S. Trade Representative (USTR) released a fact sheet contending that ISDS “allows for neutral and transparent enforcement of a limited and clearly specified set of basic rights and protections already offered to U.S. and foreign investors alike under U.S. law.”

“ISDS does not threaten domestic sovereignty, it is an exercise of sovereignty to resolve international disputes. States fully retain their sovereignty, regardless of ISDS, including to impose any measure they wish (whether to protect labor rights, the environment, or other public welfare objectives),” USTR argued. “That cannot be changed by an arbitration. ISDS strengthens rule of law by creating incentives to ensure that basic due process and rights are being recognized. … All dispute settlement under trade agreements is done through international dispute resolution mechanisms because they inherently involve parties of different nationalities. This includes enforcement of commercial provisions as well as labor and environmental provisions.”

USTR further says the use of ISDS is not on the rise under U.S. agreements. “In fact, fewer ISDS cases have been reported under U.S. agreements in recent years than in previous years despite the fact that there are more agreements that have ISDS and ever-growing volumes of cross-border investment. The peak number of cases under U.S. agreements occurred more than a decade ago.”

Some countries including Mexico are refusing U.S. demands to extend the use of ISDS to breaches of certain public concession contracts that governments have granted to a private company and which are known as “investment agreements.” They only want investors to be able to mount an ISDS case if a government violates the investment protection obligations laid out in the TPP chapter.

These countries may be willing to consent to ISDS for their TPP investment protection obligations since they were undertaken in an international law setting. But they balk at extending ISDS to cover these other investment agreements, which were negotiated in a different context, investment experts said.

Another way in which TPP countries are seeking to narrow the scope of ISDS is by requesting carveouts for themselves for specific sectors. These carveouts are spelled out in annexes attached to the investment chapter.

For instance, Canada is seeking to exclude from challenge under ISDS any measures it adopts related to cultural industries, which it further defines as audiovisual industries such those relating to publishing, film and broadcasting.

Malaysia, meanwhile, is seeking to carve out from ISDS any measures it maintains related to government procurement. This is likely intended to shield its domestic policies that provide preferential treatment in government procurement to ethnic Malays, or Bumiputra.

Finally, Australia has requested that, in the event it ultimately agrees to ISDS in TPP, it be given a specific carveout for any measures related to four government bodies involved in health care regulation. They are the Pharmaceutical Benefits Scheme, Medicare Benefits Scheme, Therapeutic Goods Administration and the Office of the Gene Technology Regulator.

The 2004 U.S.-Chile free trade agreement did not include a blanket capital control exemption, but instead laid out special dispute settlement rules that would apply to an ISDS challenge of capitol controls. Among other things, these procedures require investors to wait one year after such capital controls are imposed before filing an investor-state claim.

The investment leak came as debate over ISDS in TPP is taking on a bigger public profile in the United States, with Warren and the White House publicly trading barbs over the issue. It also came the same day as U.S. Trade Representative Michael Froman held a classified briefing for House Democrats on the TPP investment chapter.

Members of Congress and outside groups like Public Citizen and the Sierra Club that have long been critical of ISDS blasted the leaked text, saying it illustrates how the TPP would put the interests of companies over those of consumers.

USTR declined to comment on the authenticity of the text. But it defended its approach on investment in TPP as including safeguards to protect governments and provisions to allow for transparency in ISDS proceedings. — Inside U.S. Trade.

Source

OSHA Warns Health Care Employers Of Workplace Violence Risks, Raising Industry Concern

Apr 8, 2015   //   by .   //   News  //  No Comments

OSHA Warns Health Care Employers Of Workplace Violence Risks, Raising Industry Concern

OSHA has put the health care and social service sectors on notice that it intends to enforce against workplace violence risks through potential use of the OSH Act general duty clause, telling the industries in an updated guidance that they can stay in legal compliance by proactively addressing what the agency says are “serious” concerns about violent incidents.

Industry has already objected to the guidance’s suggestion that the general duty clause, which requires employers generally to provide safe and healthful workplaces and address known hazards, could be used for workplace violence enforcement purposes in hospital and similar settings. One industry attorney says the updated guidance is not necessarily objectionable on its substantive content, but he worries it could be used as a basis by OSHA to pursue unreasonable enforcement actions.

OSHA makes reference to the general duty clause toward the front of the document, noting that pursuant to the OSH Act, employers must comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. “In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. In addition, Section 11(c)(1) of the Act provides that ‘No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.'”

The agency cites high incidence of workplace violence in the sectors. “Healthcare and social service workers face significant risks of job-related violence and it is OSHA’s mission to help employers address these serious hazards,” the guidance states. The publication updates OSHA’s 1996 and 2004 voluntary guidelines for preventing workplace violence for health care and social service workers. “OSHA’s violence prevention guidelines are based on industry best practices and feedback from stakeholders, and provide recommendations for developing policies and procedures to eliminate or reduce workplace violence in a range of healthcare and social service settings,” the document says.

The new guidelines come as OSHA officials forcefully press the issue with industry. Jordan Barab, OSHA deputy assistant secretary, recently raised workplace violence concerns in an April 2 Labor Department blog. “In 2013, the Bureau of Labor Statistics reported that more than 23,000 workers suffered significant injuries from being assaulted at work,” he said. “More than 70 percent of these assaults were in the healthcare and social service settings. Healthcare and social service workers are almost four times more likely to be injured as a result of violence in the workplace than the average private sector employee. These injuries are predictable and preventable.”

The guidelines, according to OSHA, reflect variations that exist in different settings and incorporate ways to reduce the risk of violence in the workplace. “Workplace setting determines not only the types of hazards that exist, but also the measures that will be available and appropriate to reduce or eliminate workplace violence hazards.”

The guidelines are applicable in five different settings: large institutional medical facilities; residential treatment settings include institutional facilities such as nursing homes, and other long-term care facilities; non-residential treatment/service settings, including small neighborhood clinics and mental health centers; community care settings, including community-based residential facilities and group homes; and field work settings, including home health care workers or social workers who make home visits.

“Indeed, these guidelines are intended to cover a broad spectrum of workers, including those in: psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment centers, pharmacies, community-care centers, and long-term care facilities,” OSHA states. “Healthcare and social service workers covered by these guidelines include: registered nurses, nurses’ aides, therapists, technicians, home healthcare workers, social workers, emergency medical care personnel, physicians, pharmacists, physicians’ assistants, nurse practitioners, and other support staff who come in contact with clients with known histories of violence.”

The agency says 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.

OSHA cites NIOSH data and the research agency’s definition of workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.” OSHA notes that, according to the Bureau of Labor Statistics, 27 out of the 100 fatalities in health care and social service settings that occurred in 2013 were due to assaults and violent acts. “While media attention tends to focus on reports of workplace homicides, the vast majority of workplace violence incidents result in non-fatal, yet serious injuries.”

OSHA encourages health care and social service employers to develop and implement comprehensive plans to head off dangers to workers arising from violence.

Industry representatives argue that OSHA, while perhaps taking a reasonable approach insofar as the guidelines themselves are concerned, nonetheless is raising a red flag by alluding to the general-duty obligation, which industry has long argued cannot be wielded as a substitute for specific standards.

Baruch Fellner, a former attorney for OSHA who now represents management, tells Inside OSHA Online that the updated guidelines are cause for concern from an enforcement perspective, saying “this smorgasbord of written programs, training, engineering and administrative controls, checklists, etc. is entirely familiar and largely unobjectionable on their substantive merits. The problem is that when the inevitable incident occurs, or workplace complaint is filed, or union organizing campaign is triggered, OSHA will inspect and fly speck procedures and programs that are in place, including those that cover private residences.”

Fellner, partner in Gibson, Dunn & Crutcher, says in an email that given the history of past citations, variances from OSHA’s guidelines will be “fair game for onerous” general duty clause enforcement actions, and that “if OSHA is really serious about the implementation of this fifty-page litany — chapter and verse — there will be little time and resources left over for healthcare” as a broad enforcement concern. — Christopher Cole (ccole@iwpnews.com)

Source

Lawmakers Press Colleagues To Back Robust OSHA, NIOSH Funding Levels In Fiscal ’16

Mar 26, 2015   //   by .   //   Federal, News  //  No Comments

House and Senate Democrats are circulating letters urging lawmakers to support increased OSHA funding and to shield NIOSH from the Obama administration’s long-contemplated elimination of two research and education programs, with the advocacy effort driven by several safety and health professional organizations.

The move comes as some congressional Republicans are questioning OSHA’s use of its limited resources to issue a controversy-laden final rule on crystalline silica hazards and other rulemakings, as well as to beef up enforcement at the expense of more cooperative programs with industry.

The president is seeking a nearly $40 million increase for OSHA in fiscal 2016 (see related story), and with many observers seeing lawmakers having a shot this year at a regular-order appropriations process, OSHA backers are pressuring appropriators to provide robust funding levels. The president’s budget request is heavy on new enforcement spending, including funds specifically aimed at rolling out a new hospitalization reporting rule (see related story).

Safety organizations and their congressional supporters argue that despite wide-ranging differences over precisely how OSHA should spend its limited funds, the agency’s key role in the advancing occupational safety and health is without question and that Congress must pass spending legislation that at least maintains existing levels. The American Society of Safety Engineers, American Industrial Hygiene Association and National Safety Council are all pressing their members to support the effort on Capitol Hill.

Sen. Sherrod Brown (D-OH) has circulated a “Dear Colleague” letter seeking support in the fiscal 2016 Labor appropriations measure for Obama’s proposed $592.1 million funding level for OSHA. A similar letter to colleagues from Reps. Bobby Scott (D-VA) and Frederica Wilson (D-FL), ranking Democrats on the labor committee and workforce protections panel, respectively, seeks support for the president’s budget request. A source following the issue said Tuesday it was still unclear how many lawmakers had signed onto the letters.

The Senate letter seeks backing from appropriators for the proposed OSHA funding bump, but also requests “that you include a minimum of level funding for OSHA’s compliance assistance, rulemaking, and enforcement efforts.”

“Progress has been made on reducing workplace deaths and injuries since OSHA was established 40 years ago, but much more work needs to be done. Approximately 4,500 American workers are killed on the job each year, and more than three million serious occupational injuries and illnesses are recorded annually,” according to the Senate letter. “These deaths, injuries, and illnesses have enormous economic consequences. According to the National Safety Council, fatal and non-fatal work injuries cost our economy $198 billion in 2012. Much of this cost is borne by federal programs such as Medicare, Medicaid, and the Social Security Disability Insurance Program.”

The appeal to appropriators says OSHA plays a critical role in worker safety by helping employers meet OSHA standards and taking action against companies that fail to comply. “Its inspectors are responsible for protecting the lives and well-being of 130 million American workers at more than eight million places of work around the country. OSHA’s efforts save lives, and reduced or level funding could hinder the agency’s ability to carry out its mission efficiently and effectively. We urge you to provide OSHA with robust funding in Fiscal Year 2016 so that the agency can fulfill its mission of ensuring a safe and healthy work environment for American men and women.”

Scott and Wilson urge appropriators on the House side to support the president’s budget request, with particular attention to three policy areas:whistleblower protection, state program grants and modifying a longstanding appropriations rider to allow OSHA to inspect smaller workplaces with potential catastrophic explosion hazards — a change that the administration first proposed more than a year ago (see related story).

The economic burden of occupational injuries and illnesses has been conservatively estimated at $684 million per day, or $250 billion per year, in direct and indirect costs, according to the House members’ letter. “Since workers’ compensation insurance only covers approximately 25% of these costs, the remainder is shouldered by employers, workers and taxpayers.” The letter says that under the current budget, it would take OSHA an average of 139 years to inspect each workplace in its jurisdiction.

At the same time Sen. Kirsten Gillibrand (D-NY) is seeking colleagues’ support for maintaining current NIOSH funding and programs. The Obama administration is repeating a longtime appeal to Congress to zero out the Education and Research Centers, and the Agriculture, Forestry and Fishing programs, with White House budget officials arguing they are obsolete or unaffordable, as part of a $51 million overall budget cut to NIOSH discretionary funds (see related document).

“Through 18 university-based Education and Research Centers (ERCs) in 17 states, NIOSH trains thousands of occupation safety and health professionals to minimize the dangers faced by workers,” Gillibrand says in her letter to colleagues. Gillibrand adds: “Agricultural safety and health has been an important focus of NIOSH for more than 20 years. Congress designated NIOSH to lead a comprehensive national effort to prevent occupational injuries in the agricultural sector.”

The Dear Colleague letters had a deadline on Monday (March 23) for signatures. — Christopher Cole (ccole@iwpnews.com)

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