OSHA’s 2017 Top Ten List

OSHA recently announced its top 10 most cited violations for fiscal year ending 2017. Although the order may change from year to year, it usually reflects the usual suspects of violations and this year’s list is no different. Because the top ten list is so consistent, it remains an excellent starting point for businesses that want to review safety practices and policies and may not be sure where to start. It can also serve as a helpful tool for safety committees to periodically review along with the OSHA logs. The top ten list appears below with some common examples of each violation. (more…)

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An Often Overlooked Tool in Workplace Safety Prevention: The Near-Miss Investigation

construction worker almost falls in open manholeOSHA defines a “near miss” as an incident in which no property was damaged and no personal injury was sustained, but where, given a slight shift in time or position, damage or injury easily could have occurred. Put simply, someone got lucky.

Because there was no damage, these near miss incidents are often ignored or not investigated as thoroughly as a recordable workplace injury or illness on the premise of “no harm, no foul.” However, by doing so, businesses fail to take advantage of a zero cost learning tool that might prevent a serious injury or illness from occurring in the not-so distant future. Indeed, experience has shown there is little question that most loss producing events were preceded by warnings or near miss incidents.

Take the real life example of a business that many years ago installed a number of small venting systems at its operations. A piece of one of the venting systems fell and almost hit an employee which almost certainly would have caused a serious injury and possibly death. The business determined that (essentially) a screw came loose causing the part to fall. It then checked the remaining venting systems and learned that other screws had starting becoming loose as well and was able to resolve the issue before anyone got hurt.  (more…)

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OSHA to Hold Second Public Meeting to Discuss Voluntary Protection Programs

As generally expected under a Republican administration, OSHA appears more focused on compliance and a collaborative working relationship with businesses. As part of this strategy, OSHA recently announced it will hold its second public meeting on August 28, 2017 to solicit suggestions for strengthening the Voluntary Protection Programs (VVP).

The agenda will target three broad categories which include 1) overall VVP process and flow; 2) corporate/long-term participant involvement; and 3) special government employee activities. The meeting will be held in the Great Hall B of the Ernest N. Morial Convention Center in New Orleans from 1 to 4 p.m. A link to register follows https://reg.abcsignup.com/reg/event_page.aspx?ek=0019-0016-b6d21cbf3980471ea6e0bf2b391faacb

However, it is also worth noting that the numbers do not indicate any material slip in enforcement. OSHA inspections have remained relatively constant during the first six months of the Trump administration, as approximately 17,500 inspections occurred from January 20 to July 20, 2017, compared to approximately 16,500 inspections that happened during the same period in 2016. It will be interesting to see if the rate of inspections continues in the coming years and to watch for any significant policy shifts such as in the area of bathroom facilities for transgender workers, among others.

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James Sullivan Confirmed by Senate

Cozen O’Connor member James Sullivan was confirmed by the full Senate yesterday to fill the last vacancy on the Occupational Safety and Health Review Commission (“OSHRC”).  OSHRC, an independent federal agency providing administrative trial and appellate review, was created to decide contests of citations or penalties resulting from OSHA inspections. OSHRC functions as a two-tiered administrative court with established procedures for (1) conducting hearings, receiving evidence and rendering decisions by its Administrative Law Judges and (2) discretionary review of ALJ decisions.

Jim’s start date with OSHRC has not yet been determined. Jim will be very much missed but we wish him every success as he starts a new and exciting chapter in his professional career! Congratulations Jim!

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When the Summer Wind Comes Blowing In: Remember OSHA’s Heat Stress Guidance

Heat stroke attention of outdoor laborYesterday, American Airlines announced it cancelled approximately 45 regional flights due to intense summer heat in the Phoenix area and there were record highs recorded in the region. The intense heat waves serves as a good reminder that OSHA has guidance on addressing heat stress and employers may need to do more than simply offering employees a cold beverage or an extra rest period although certainly water, rest, and shade are some ways to prevent heat stress illnesses according to OSHA. In fact, OSHA launched a Heat Illness Prevention campaign in 2011 designed to educate employers and employees on the dangers of working in the heat and the phrase “water, rest, and shade” is OSHA’s tag line for the campaign.

According to OSHA, dozens of workers die and thousands more become ill while working in extreme heat or humid conditions. OSHA further states that approximately 40 percent of heat-related work deaths occur in the construction industry but that employees in any industry could be affected and without regard to age or physical condition. Heat stroke is the most serious heat illness but other illnesses may include heat exhaustion, heat cramps, and heat rash.

Although there is no specific standard, OSHA has cited employers for failing to abate recognized heat hazards under the general duty clause. According to OSHA, a Heat Illness Prevention Program should contain the following key elements:

  • Person designated to Oversee the Program
  • Hazard identification
  • Water, Rest, Shade Message
  • Acclimatization
  • Modified Work Schedules
  • Training
  • Monitoring for Signs and Symptoms
  • Emergency Planning and Response

(more…)

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OSHA and Ergonomics: The Past, Present, and Future

sitting at desk with correct postureErgonomics is the study of work. From an OSHA perspective, it is the process of designing the job to fit the employee, rather than forcing the employee’s body to fit the job. This process may include modifying tasks, the work environment, and equipment to meet the specific needs of an employee to alleviate physical stress on the body and eliminate potentially disabling work related musculoskeletal disorders (“MSDs”). The overall goal is to eliminate injuries and disorders associated with the overuse of soft tissues, e.g., muscles or tendons, awkward posture, and repeated tasks. Such common injuries include carpal tunnel syndrome, tendinitis, and other sprains and strains.

As some may recall, ergonomics was a very hot topic for OSHA in the 1990s. In 2000, OSHA, which had spent a decade studying ergonomics, estimated that $1 of every $3 spent on workers’ compensation stems from ergonomic issues and that the direct costs attributable to MSDs were $15 to $20 billion a year, with total annual costs upwards of $54 billion.

OSHA began an ergonomics rule-making process in 1992 and started drafting an ergonomics standard in 1995, which eventually culminated in the issuance of an Ergonomics Program Standard on November 4, 2000, which became effective on January 16, 2001. The new rule generally contained requirements for most non-construction employers to identify and abate MSDs. Not surprisingly, there was strong criticism by various industry and business groups about the new rule which focused on, among other things, mandatory compliance, cost, and tension with state workers’ compensation laws. Shortly after taking office, President Bush signed Senate Joint Resolution 6 on March 20, 2001, which repealed the new standard. (more…)

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OSHA and Workplace Violence

The workplace violence tragedy in Florida yesterday where a lone gunman killed five people and then himself at an Orlando awning factory is a sad reminder that workplace violence remains a serious issue for businesses. OSHA estimates that approximately 2 million American workers are victims of workplace violence each year and that it can strike anywhere, at any time. In fact, during a recent fire drill at our building, the Fire Warden spoke not only about emergency exit procedures during a fire but protocols when an active shooter is in the building. Although it is a frightening scenario to think about, businesses can and should be proactive about identifying potential workplace violence incidents and providing appropriate training.

Although there are no specific OSHA standards for workplace violence, ignoring signs and failing to abate recognized hazards including workplace violence could lead to a violation of Section 5(a)(1), the general duty clause, of the Occupational Safety and Health Act. Specifically, an employer that has experienced acts of workplace violence, or becomes aware of threats or other indicators showing the potential for workplace violence would be on notice for risk of workplace violence and should implement a workplace violence prevention program including engineering controls, administrative controls, and training as it generally should for any other kind of recognized hazard in the workplace. Indeed, some states such as New York already require certain employers (public employers) to have a written workplace violence program including conducting a hazard assessment.

Although it is too early to tell in the Orlando case what, if any, signs existed that might have predicted the shooting, law enforcement has stated that it appears the shooter was singling out individuals and that he had at least one negative relationship with one of the victims. In many of these tragedies, there may have been visible workplace violence signs or other indicators.  (more…)

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One DOL Drug Testing Rule Officially Gone – Is OSHA Next?

On May 10, the Department of Labor officially nullified a rule passed during the Obama administration that limited states’ ability to require mandatory drug testing for individuals applying for unemployment benefits.

As we covered in an earlier blog, OSHA’s new electronic recordkeeping rule (which is currently the subject of legal challenge) contains anti-retaliation language which OSHA has interpreted as preventing employers, except in limited situations, from implementing mandatory post-accident drug testing.

Although the nullified rule was issued by the Department of Labor Employment and Training Administration, one reading tea leaves might well predict that the principle at play may well extend to OSHA’s retaliation rule soon. (more…)

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OSHA Compliance – It’s Not Just About OSHA

Most businesses, particularly outside of construction or manufacturing, have probably not been the subject of an OSHA audit or may not have had much involvement with OSHA issues. This is due in large part to the small size of the agency. According to OSHA, with its state partners, there are approximately 2,100 inspectors responsible for the health and safety of more than 130 million workers. Add to the fact that there is no private right of action under OSHA, like the FLSA, and it is understandable why this may be the case.

However, there are other ways OSHA may become an issue for businesses. For example, if your business provides services at another entities worksite, the service contracts often contain provisions that the service provider shall comply with any and all applicable laws and they often reference OSHA specifically. Thus, failing to comply with OSHA standards could provide a basis for a party to terminate a contract even if the “real” reason for terminating the contract may be driven by something entirely different. (more…)

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OSHA Rescinds Fairfax Memo

In 2013, OSHA issued what is commonly referred to as the “Fairfax” memo, a standard interpretation letter that, among other things, permitted non-employee, union representatives to participate in the walk-through portion of an OSHA audit. Last year, the National Federation of Independent Business filed a suit challenging this interpretation. Upon OSHA’s notification that the Fairfax memo had been rescinded and that it had removed the guidance from the Field Operations Manual, the Federation withdrew its legal challenge.

It is welcome news for businesses and perhaps a sign of things to come for other outstanding legal challenges to new OSHA rules and past OSHA guidance including but not limited to electronic recordkeeping, anti-retaliation, higher penalties, silica, and OSHA’s Guide to Restroom Access for Transgender Workers, etc.

Stay tuned…

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