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 Upon OSHA’s notification that the Fairfax memo had been rescinded and that it had removed the guidance from the Field Operations Manual, the Federation withdrew its legal challenge.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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“Volks” Rule. Going, going…

In the final days of the Obama Administration, OSHA finalized a rule that sought to restore what the agency called a “longstanding position” that employers must record and keep records of worker injuries or illness for a full five years or they could be cited.

The D.C. Circuit in a case involving Volks Constructors held that OSHA’s rule of citing employers for the full five year period for such violations exceeded its statutory authority and limited citations to the standard 6 month period.

Last week, the Senate passed a resolution to undo the “Volks” rule and now it will be sent to the President who has indicated that he will sign so it looks like just a matter of time before the “Volks” rule is finally gone.

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Timely OSHA Issues Discussed at the American Bar Association – OSHA Committee Meeting

Close-up of Hands holding pens and making notes at the conferenceThe ABA – OSHA Committee held its 2017 Midwinter Meeting in Jupiter Florida from March 7 – 10. It was well attended by OSHA practitioners across the country including many prominent government attorneys including: Susan Harthill, Deputy Solicitor for National Operations; Thomas Galassi, Director, Directorate of Enforcement Programs, OSHA; the Honorable Covette Rooney, Chief Judge, U.S. Occupational Safety and Health Review Commission; and Heather MacDougall, Acting Chairperson, Occupational Safety and Health Review Commission.

Many in the audience wondered how the new Administration might affect OSHA in the next four years. As expected, the typical response from the government side was business as usual with one government attorney commenting, “smaller but mightier.”

The various panels throughout the conference discussed timely OSHA issues (many of which have been covered in prior blogs here) including the new electronic recordkeeping rules, annual indexing of penalties, developments in process safety management, criminal prosecutions following workplace fatalities, targeted enforcement initiatives and anti-retaliation issues.

During one panel which discussed legal issues arising from OSHA inspections, there was a particularly lively exchange between management attorneys and OSHA representatives on two specific issues: 1) the right of non-employee, union representatives in a non-union worksite to participate in a walk-around inspection and 2) the right of hourly employees to have a management representative participate in an OSHA interview. (more…)

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OSHA Inspections and Search Warrants – What’s the Rule vs. Best Practice?

inspector with clipboard wearing hard hatCongress granted the Secretary of Labor the authority to enter places of employment to conduct safety and health inspections. The OSH Act provides that such inspections must take place at reasonable times, within reasonable limits and in a reasonable manner and that they may include inspection of relevant conditions, structures and other equipment. For a general description of the inspection process, OSHA has published a Fact Sheet which is available here.

As the Fact Sheet indicates, it is also well-established that an employer may generally request a search warrant before allowing an OSHA inspector into the worksite. There are limited exceptions to the warrant requirement which include 1) consent by the employer 2) authorized third party consent such as consent provided by a general contractor at the worksite 3) emergency situations if there is a compelling need for official action and no time to secure a warrant and 4) if the conditions are in plain view of the public or inspectors while they are lawfully on the employer’s premises. (more…)

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(Slightly) Higher Fines for OSHA Violations Moving Forward

person writing on clipboardAs of January 13, 2017, employers will be subject to higher fines for safety and health violations but not by much – 1.01636 percent to be precise. The increase matches the annual consumer price index by the federal government as of October 2016.  The new maximum OSHA fines are:

  • Repeat, willful: $126,749
  • Serious, other-than-serious: $12,675
  • Failure to abate: $12,675 (per day beyond the abatement date)

States that operate their own Occupational and Safety and Health Plans are also required to adopt maximum penalty levels that are at least as effective as OSHA’s. (more…)

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A Quick Look Back at OSHA in 2016 by the Numbers

construction area inspectionThere are lot of questions about how the Trump administration will affect OSHA in the next four years including who will lead the agency.  The President has already implemented a federal hiring freeze although there are some exceptions built into the mandate. However, it is probably a safe bet to assume we probably will not see an increase in OSHA enforcement and most likely a shift from enforcement to compliance assistance as federal budgets will likely shrink. (more…)

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Welcome to the OSHA Chronicle!

Well, 2017 is upon us and one of my New Year’s resolution is to start an OSHA related blog and this is one resolution I am committed to keeping (unlike a few others that have already fell by the wayside unfortunately).

I know it may not sound like a particularly interesting subject for a blog or perhaps a bit unusual to some, but if you are reading this, I suspect you probably do not fall into either of those camps.  We are the safety and health “nerds” of the world and a group which, to be blunt, probably doesn’t get enough recognition but that’s a subject for a future blog.

To start, I wanted to share some of the reasons workplace safety is so important to me and also talk about some of my hopes and objectives in writing this blog.

Let me start with who I am.  My formal legal background can be viewed under the “About the Author” link on this blog.  For additional information about my experience, I welcome you to visit my bio on Cozen O’Connor’s website located here.

For my entire professional career I have been involved with workplace safety and health issues.  Immediately after law school, I started as a trial attorney with the United States Department of Labor where I prosecuted, among other laws, OSHA.  At DOL, I quickly grew to understand the importance of workplace safety and witnessed the tragedies that could take place when workplace safety is not a priority.  (more…)

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