October 14, 2019

October 14, 2019

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The OSH Line: January 2018

We hope everyone is having a safe and warm start to the new year. Cold temperatures and winter storms create a number of potential safety issues for employers to consider. OSHA has published winter weather guidance to help employers prevent injuries, illnesses, and fatalities during winter storms. Some hazards created by cold weather and winter storms include cold stress, slips and falls on icy surfaces, and hazards related to snow removal.

As one would expect, OSHA’s guidance on cold stress is similar to its guidance on heat stress. Although OSHA does not have a specific standard that addresses cold stress, employers must still protect workers from cold stress hazards under OSHA’s General Duty Clause. Some of what employers can do include training employees on how to avoid cold stress, selecting proper protective clothing, implementing appropriate administrative and engineering controls to keep employees warm, and monitoring the weather. Employers are not required to pay for “[o]rdinary clothing, skin creams, or other items, used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen.” 29 C.F.R. § 1910.132(h)(4)(iii). 

To prevent slips on snow and ice, OSHA suggests “employers should clear walking surfaces of snow and ice, and spread deicer, as quickly as possible after a winter storm.” OSHA also provides some tips for employees to follow to avoid slipping and falling on icy surfaces. Employers should note injuries resulting from a slip and fall on ice in a company parking lot or sidewalk is work-related under OSHA’s recordkeeping standards and guidance.

Another seasonal safety and health issue affecting employers is the flu. Employers should make sure hand soap is available in all restrooms and remind employees to be diligent in practicing good personal hygiene. OSHA has guidance available with tips employers can follow to reduce the spread of the flu in workplaces.

SECRETARY OF LABOR UPDATE

Secretary of Labor Redux

The Senate committee on health, education, labor, and pensions approved Scott Mugno’s nomination for assistant secretary of labor for OSHA December 13, 2017. Due to the Senate’s standing rules, the nomination was returned to President Trump January 3, 2018 because the Senate failed to act upon the nomination by the end of their previous session. President Trump returned Mugno’s nomination to the Senate January 8, 2018, and the Senate committee once again approved his nomination January 18, 2018. The Senate is expected to vote on Mugno’s nomination in the coming weeks.

As we previously reported, Mugno has long been predicted to be President Trump’s nominee. For the past six years, Mugno has served as vice president, safety, sustainability & vehicle maintenance for FedEx Ground. Mugno has a strong reputation as a dedicated and practical safety professional. He is expected to continue Secretary Acosta’s efforts to steer OSHA in a direction focusing more effort on cooperative programs like the Voluntary Protection Program (VPP) and the Safety and Health Achievement Recognition Program (SHARP) and less effort on regulatory initiatives and aggressive enforcement.

REGULATORY UPDATE

On December 19, 2017, OSHA issued a bulletin announcing “OSHA has released more than a dozen fact sheets that provide guidance on the respirable crystalline silica standard for construction. One fact sheet is an overview of the silica standard. The other fact sheets provide employers with information on how to fully and properly implement controls, work practices, and if needed, respiratory protection for each of the 18 tasks listed in Table 1 — Specified Exposure Control Methods under the standard.” Construction employers should take advantage of the information that OSHA has provided to ensure compliance with the new silica standard.

As a reminder, employers in general industry and maritime will have to comply with the corresponding new silica standards on the following schedule:

For all operations in general industry and maritime, other than hydraulic fracturing operations in the oil and gas industry:

  • Employers are required to comply with all obligations of the standard, with the exception of the action level trigger for medical surveillance, by June 23, 2018.

  • Employers are required to offer medical examinations to employees exposed above the PEL for 30 or more days a year beginning on June 23, 2018.

  • Employers are required to offer medical examinations to employees exposed at or above the action level for 30 or more days a year beginning on June 23, 2020.

For hydraulic fracturing operations in the oil and gas industry:

  • Employers are required to comply with all obligations of the standard, except for engineering controls and the action level trigger for medical surveillance, by June 23, 2018.

  • Employers are required to comply with requirements for engineering controls to limit exposures to the new PEL by June 23, 2021. From June 23, 2018 through June 23, 2021, employers can continue to have employees wear respirators if their exposures exceed the PEL.

  • Employers are required to offer medical examinations to employees exposed above the PEL for 30 or more days beginning on June 23, 2018.

  • Employers are required to offer medical examinations to employees exposed at or above the action level for 30 or more days a year beginning on June 23, 2020.

RECORDKEEPING UPDATES

Electronic Recordkeeping Update

All covered employers should have submitted the information from the 2016 Form 300A summary by December 31, 2017, which was the additional grave period OSHA provided to employers after numerous delays to the initial deadline. OSHA has already begun accepting the 2017 Form 300A summary information on its Injury Tracking Application (ITA) page; however, covered establishments have until July 1, 2018 to submit this data. On the ITA page, OSHA emphasizes it “is not accepting Form 300 and 301 information at this time.”

Instead, OSHA continues to draft a notice of proposed rulemaking “to reconsider, revise, or remove provisions of the ‘Improve Tracking of Workplace Injuries and Illnesses’ final rule, including the collection of the Forms 300/301 data.” This pronouncement strengthens speculation OSHA will ultimately propose to remove the provisions of the rule requiring employers to submit data from the 300 log and the 301 injury and illness incident reports.

Request to Make Public the 2016 300A Information

On January 19, 2018, Public Citizen Foundation (Foundation) filed a complaint for declaratory and injunctive relief against the Department of Labor and OSHA in the D.C. District Court. The Foundation describes itself as “a non-profit public-interest organization that, among other things, works to promote openness in government, including by disseminating information to advance government accountability.” In its complaint, the Foundation seeks an order compelling OSHA to provide the Foundation with all of the submitted 2016 Form 300A information in response to the Foundation’s previous Freedom of Information Act (FOIA) request. According to the complaint, the Foundation intends to use the information “to conduct research on issues of workplace health and safety.” If the court grants the Foundation’s request, it is possible the Foundation would ultimately make the information available to the public. Even if the Foundation keeps the information to itself, such a ruling would pave the way for other public-interest organizations or competing businesses to request the Form 300A information through the FOIA request process.

Reminder – Post Your 300A Forms

As a reminder, employers have until the end of the month to review the OSHA 300 Log for 2017 to verify all entries are complete and accurate and to create any deficiencies, to create an annually summary of the 2017 300 Log, to certify the summary, and to post the annual summary. The completed summary must remain posted through April 30, 2018.

INCREASED PENALTIES AND CONTINUED ENFORCEMENT

On January 2, 2018, the Department of Labor published a final rule “to adjust for inflation the civil monetary penalties assessed or enforced in its regulations.” The adjustment raises potential penalties for Other-Than-Serious, Serious, and Failure to Abate citations from $12,675 to $12,934 per citation item and for Repeat and Willful citations from $126,749 to $129,336 per citation item.

Meanwhile, OSHA and its state counterparts continue to actively pursue significant citations against employers.

Since our last OSH Line was published December 4, 2017, OSHA has issued 16 press releases concerning citations issued by federal OSHA and three press releases concerning citations issued by its state counterparts. It seems the previous administration’s regulation by shaming campaign has either been resurrected or is enjoying one last hurrah before President Trump’s administration fully takes the agency’s helm.

While we await a more cooperative approach to workplace safety compliance, substantial vestiges of the previous administration continue to push for active and strenuous enforcement.

REVIEW COMMISSION UPDATES

Recent administrative law judge decisions

Recent administrative law judge decisions provide useful reminders regarding the proper implementation of workplace safety and health programs.

More General Duty Clause Issues

In a recent decision that became a final order in November, Administrative Law Judge Brian A. Duncan evaluated two citation items in which OSHA alleged violations of the General Duty Clause. Sec’y of Labor v. Bronco Oilfield Servs., Inc., OSHRC No. 16-0996 (Nov. 27, 2017). At issue was whether Bronco Oilfield’s failures to tie down pipe sections to prevent unintentional movement and to install a pressure relief valve for each pump being used constituted violations of the General Duty Clause. Id. at 5.

In order to establish the hazards at issue were recognized by the respondent and its industry, Judge Duncan noted “[p]robative evidence of industry recognition includes, amongst other things, voluntary industry standards, such as those published by ANSI, NFPA, and API.” Id. at 9. The applicable consensus standards in this case were the American Petroleum Institute’s Recommended Practices. Because an API recommended practice directly addressed the hazards at issue in citation 1, items 1(a) and 1(b), Judge Duncan found “the well-servicing industry recognized the hazard of overpressure leading to line movement and/or line failure” and “the hazards associated with over-pressurization.” Id. at 10-11. As a result, Judge Duncan found the respondent needed to implement feasible methods to address the hazards.

API’s recommended practices that addressed the hazards at issue, however, were performance-based rather than prescriptive. The respondent, therefore, had latitude in how it addressed the hazards. After weighing various proposed and existing methods of abatement, Judge Duncan ultimately determined the respondent had successfully controlled the hazard at issue in item 1b, but failed to adequately control the hazard at issue in item 1a. As a result, Judge Duncan affirmed item 1a and vacated item 1b.

This case serves as a useful reminder to employers to consult with applicable industry standards when conducting a risk or hazard assessment to ensure that all recognized hazards are properly addressed.

Employer Knowledge

In another recent decision that became a final order earlier this month, Administrative Law Judge Heather A. Joys evaluated two citations concerning alleged fall protection and reporting violations. Sec’y of Labor v. CME Corp., OSHRC Docket No. 16-1851 (Jan. 4, 2018). In affirming the fall protection citation, Judge Joys found the employer had knowledge of the violative condition because the supervisor who was on site saw an employee working near an unprotected edge without fall protection and, although the supervisor surely did not expect the employee to fall, he specifically authorized the employee to go ahead with his task. Id. at 10-11. The decision illustrates how important it is for supervisors to provide employees with clear instructions on how to perform tasks that could expose an employee to a hazard.

Reporting Incidents Involving Temporary Employees

Judge Joys also found that CME failed to properly report the resulting in-patient hospitalization. The injured employee was a temporary employee employed by the United Labor Group (ULG) who was “working under the exclusive control of CME.” Id. at 13. CME did not report the incident to OSHA because they immediately notified ULG of the accident and assumed that ULG would notify OSHA since ULG was responsible for the injured employee’s workers compensation. Because CME was responsible for the day-to-day supervision of the injured employee, CME was responsible for reporting the incident to OSHA. CME’s failure to report the incident directly or to confirm that ULG properly reported the incident violated OSHA’s reporting requirements. It is imperative employers that rely on temporary workers establish clear reporting protocols with the temporary employers to avoid uncertain situations that can result in OSHA citations.

Employers should always assess the factual and legal merit of any citation before accepting it since OSHA can use any accepted citation item, including an Other-Than-Serious citation, as a basis for a repeat classification for up to five years and repeat citations now carry a potential penalty of $129,336.

© 2019 Dinsmore & Shohl LLP. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Daniel Flynn, Dinsmore Law Firm, Environmental and Safety and Health Attorney
Partner

Dan, a member of the Environmental Practice Group, focuses much of his practice on environmental, health and safety issues.

He has represented companies across general industry and construction with matters involving the Occupational Safety and Health Administration (OSHA), ensuring local and national clients minimize liability from OSHA enforcement actions by counseling clients on proper compliance with all OSHA standards and on proper inspection management techniques. If citations are issued, he helps clients develop and evaluate settlement...

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