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Safety Compliance Lookout: The Top 5 Things to Watch Out for With OSHA in
2016Sponsored by
OSHA Top 5 Trends for 2016
ADELE L. ABRAMS, ESQ., CMSPLAW OFFICE OF ADELE L. ABRAMS PCWWW.SAFETY‐LAW.COM
Overview
Heading into home stretch of Obama Administration … Issues:
Which S&H issues will be on Congress’ radar screen in 2016?Will delays continue at OIRA/OMB in releasing rules for comment or finalization?What enforcement tools will be used in remaining months
OverviewOSHA enforcement priorities:
NEPs & GHS HazComContractor and Temporary Worker SafetyRecordkeeping and Reporting Requirements (more “event driven” inspections likely)Whistleblower prosecutions (Sec. 11(c))Inspection “weighting” and more use of GDCMore use of SVEP, CSAs & criminal prosecutions … and higher civil penalties!
OverviewOSHA continues its National Emphasis Programs (NEPs) ‐‐ Federal OSHA emphasis areas include:
Crystalline SilicaCombustible DustHazardous machinery (LOTO) AmputationsHexavalent Chromium & LeadTrenching & ExcavationsProcess Safety Management
GHS Hazard CommunicationGHS revisions to OSHA’s Hazard Communication Standard, 29 CFR 1910.1200
were in March 2012 final rule
Manufacturers, importers and distributors were to update SDSs and labels for products packaged and shipped after 6/1/2015 – extensions granted if “good faith” effort made to obtain updated info
Employers were to train all employees on GHS elements (new pictograms, SDS format, labeling, signal words) by 12/1/2013
All updated elements can be enforced against employers 6/1/2016 (unless extension granted)
Guidance for manufacturers released in 2015
Additional guidance on “Weight of Evidence” for data evaluation now open for comment until 5/2/2016 ‐https://www.osha.gov/weightofevidence/woe_guidance.pdf
SVEP
CPL 02‐00‐149 (SVEP) took effect 6/18/2010 and sets forth parameters of program.
Focuses enforcement efforts on employers who willfully and repeatedly endanger workers by exposing them to serious hazards.
Establishes procedures and enforcement actions for SVEP, including increased inspections, mandatory follow‐up inspections of a workplace found in violation and inspections of other worksites of the same company where similar hazards or deficiencies may be present.
Targets those who commit willful, repeated or failure‐to‐abate violations in one or more of the following circumstances: a fatality or catastrophe situation; in industry operations or processes that expose workers to severe occupational hazards; exposing workers to hazards related to the potential releases of highly hazardous chemicals; and all egregious enforcement actions.
SVEP
Once under SVEP – remain there for at least 3 years!
Will trigger inspections at all worksites based on certain types of violations found during initial inspections
Repeat citations or failure to abate notices based on a serious violation related to the death of an employee or three or more hospitalizations.
Violations under this section do not need to be classified as “High Emphasis Hazards.”
A “High Emphasis Hazard” is one based on a fall or a specific National Emphasis Program (NEP)
Non‐Fatality/Non‐Catastrophic High Emphasis Hazards. An inspection which finds two or more Willful or Repeat violations or failure to abate notices based on high gravity, serious violations due to a High Emphasis Hazard.
All “egregious” enforcement actions (cases where OSHA has alleged instance‐by‐instance violation of a particular standard) will be considered SVEP cases.
DOL/DOJ MOU:Criminal Prosecution12/17/15: DOL/DOJ entered an MOU to work cooperatively in bringing more criminal prosecutions under the OSH Act and Mine Act, and under other federal statutes with more stringent sentencesUS Attorneys are urged to use EPA laws (with felony provisions) and 18 USC (obstruction of justice, conspiracy, false statements, witness tampering) to impose sentences that could reach 20+ yearsDOL/DOJ MOU suggests that workplace violations may be prosecuted creatively by using Clean Air Act, Resource Conservation & Recovery Act, and Toxic Substances Control Act
DOL will also seek criminal prosecution for violations of child labor laws that endanger workers.
Federal OSHA Criminal Sanctions
DOJ/DOL MOU prosecutions will be open to the ones making the decisions that lead to the deaths of others including people in the corporate office, managers and supervisors in the field. OSH Act provides criminal sanctions for three types of conduct that impact worker safety: (1) willfully violating a specific standard, and thus causing the
death of an employee; No criminal prosecutions can currently be brought for violations of the OSH Act “General Duty Clause” that result in death
(2) giving advance notice of OSHA inspection activity (e.g., by calling inside a facility to give notice while holding inspectors outside, so that safety infractions can be remediated before discovery); and
(3) falsification of documents filed or required to be maintained under the OSH Act.
OSHA State Plan States
In the 22 “state plan states,” criminal prosecutions are brought more often because the state attorney generals can rely on state statutes with longer prison terms and higher criminal monetary penalties:◦ involuntary manslaughter, ◦negligent homicide, ◦reckless endangerment ◦assault and battery
OSHA Revised PenaltiesDebt reduction bill includes provision that will increase OSHA penalties by 80+% ($127,400) – increased min. penalty for willful/repeat of $12,000 – takes effect 8/1/2016!!!!OSHA also made changes in administrative procedures that could significantly increase the average penalty – impacts what OSHA area directors can offer in settlement. The issuance of “egregious” violations is increasing, and this allows a penalty to be assessed for each occurrence of a problem or each worker affected (puts employer in SVEP). Area directors can offer an employer with 250 or fewer employees a 20 percent penalty reduction if it agrees to retain an independent safety and health consultant.
New Serious Injury ReportingFinal Rule took effect 1/1/2015 – report to local office during normal hours or call 1‐800‐321‐OSHA (6742)
Rule retains the exemption for any employer with 10 or fewer employees, regardless of industry classification, from having to routinely keep records.
Rule expands the list of severe work‐related injuries that all employers must report to OSHA.
The revised rule retains the current requirement to report all work‐related fatalities within 8 hours Adds the requirement to report all work‐related in‐patient hospitalizations, amputations and loss of an eye within 24 hours to OSHA. Employers only have to report an inpatient hospitalization, amputation or loss of an eye that occurs within 24 hours of a work‐related incident
OSHA “TRIAGE” ON REPORTS
In determining whether OSHA will send an inspection team, they ask:What was the injured EE doing just before injury;What tools, equipment or materials was he using;What directly caused the harm;Is the hazard that caused the harm still in the workplace;Could other persons potentially be harmed;What steps have been taken to remove the hazard;Has there been a similar incident or near miss?
OSHA TRIAGE ON REPORTS
Priority inspections for I/I reports will be given to Category 1 reports:
Fatalities or at least 2 persons hospitalized;Injury to worker under age 18;Employers with known history of multiple injuries (same/similar events in past 12 mo);Repeat offenders (those with history of egregious violations, willful and repeat violations, and failure to abate situations)Employers in SVEPThose employers covered by National Emphasis Program
OSHA will also give priority to those workplaces with whistleblower complaints pending, those in VPP or SHARP, and those involving temporary workers or health issues
Electronic Recordkeeping OSHA Final Rule is at OMB awaiting clearance – target release date 3/16 (will slip)OSHA proposal would require employers with 250+ workers to file electronic reports of all injuries and illnesses quarterlySmaller employers would need to submit data annuallyWould not relieve requirement to post logs in workplaceElectronic data would be publicly available and searchable by employer nameIncludes modification to 29 CFR part 1904.35 to clarify an employee’s right to report injury and illnesses to their employer without fear of retaliation.
Temporary Worker SafetyStaffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers ‐ training, hazard communication, PPE and recordkeeping/reporting.
OSHA could hold both the host and temporary employers responsible for the violative condition(s) ‐ and that can include lack of adequate training regarding workplace hazards.
OSHA recommends that temporary staffing agency and host employer set out their respective responsibilities in their contract.
OSHA says:The key is communication between the agency and hostStaffing agencies must inquire into conditions that their workers will face at assigned workplaces and ensure the work environment is safeIgnorance of hazards is no excuseHost employer must protect temps in same manner as regular employees
Enforcement “Weighting” A key metric historically used to evaluate the effectiveness of OSHA is total
number of inspections conducted … but didn’t take into account the wide array of resource intensive inspections
Old metrics have been replaced because penalized OSHA managers who ordered more complex inspections that used more CSHO time
New criteria appear to encourage more inspections that will lead to GDC citations
New system: Top weighting to “significant cases ($100K+) – 8 ptsProcess Safety Management inspections ‐ 7 ptsErgonomics inspections – 5 pts“Exposure to substance not regulated,” workplace violence, and fatality/catastrophic event inspections – 3 ptsCombustible Dust inspections and those requiring personal sampling – 2 ptsInformal Complaint (hospital or medial referral) – 1/9 ptsRapid Response Investigation follow‐up – 1/9 pts
Greater Use of General Duty Clause
Section 5(a)(1) of OSH Act permits issuance of citations to exposing employer for recognized hazards that could cause death or serious bodily injuryNecessary elements to prove a violation of the general duty
clause:The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;The hazard was recognized;The hazard was causing or was likely to cause death or serious physical harm; andThere was a feasible and useful method to correct the hazard.
Actual exposure(s) must have occurred within the six monthsimmediately preceding the issuance of the citation to serve as a basis for a violation, except where the employer has concealed the violative condition or misled OSHA.
General Duty Clause
Recognition of a hazard can be established on the basis of employer recognition, industry recognition, or “common‐sense” recognition.
Evidence of employer recognition may consist of written or oral statements made by management personnel during inspection.
Employer awareness of a hazard may also be demonstrated by a review of company memorandums, safety work rules that specifically identify a hazard, operations manuals, standard operating procedures, and collective bargaining agreements. In addition, prior accidents/incidents, near misses known to the employer, injury and illness reports, or workers' compensation data, may also show employer knowledge of a hazard.
Employee complaints or grievances and safety committee reports to supervisory personnel may establish recognition of the hazard, but the evidence should show that the complaints were not merely infrequent, off‐hand comments.
An employer’s own corrective actions may serve as the basis for establishing employer recognition of the hazard.
Whistleblower Prosecutions
More emphasis on prosecuting whistleblower violations under Section 11(c) of OSH Act
Incentive & disciplinary programs may be linked to discrimination for protected activity (reporting injury or unsafe conditions)
Adverse action includes not only termination but: suspension, demotion, written warnings, change of shift or position, bad references
To avoid Section 11(c) claims:◦ When an employee raises a safety concern, take it seriously, investigate and document
◦ Never force anyone to work in equipment or areas that he/she believes is unsafe◦ Never fire, demote or discipline workers for expressing safety concerns or cooperating with OSHA/MSHA during investigations (or for filing safety complaints with federal or state agencies)
◦ OSHA prosecutes in US District Court ‐ in 2015, multiple employers faced damages of $200,000+ in litigated cases◦ OSHA has Whistleblower Advisory Committee, and new guidance was the subject of comment in 2016
Regulatory Activities: Crystalline SilicaFinal rule now at OMB awaiting approval – top priority for OSHARule in development for more than a decade – applies to all industry sectorsWould lower current general industry PEL (100 ug/m3) and construction PEL (250 ug/m3) to 50 ug/m3 with 25 ug/m3 action limitIncludes provisions for:Measuring worker exposures to silica;Limiting access to areas where workers could be exposed above the PEL;Use of dust controls;Use of respirators when necessary;Medical exams for highly exposed workers;Worker training; andRecordkeeping.
Regulatory Activities: PELs RFIRFI issued 10/10/14 – comments closed 10/9/15
Issue: Many PELs outdated, many chemicals have no
PELs at all, legal hurdles preclude “group rulemaking”
OSHA is reviewing its approach to managing chemical exposures, and seeks input on new approaches (in light of legal requirements) Role of exposure modeling in feasibility analysisPotential role of REACH (EU approach), HazCom and control bandingSources of info about chemical hazardsNon‐OEL approaches to chemical management
EO 13650 – Chemical Security
OSHA has significant role in the multi‐agency Chemical Facility Safety & Security Working Group aimed at improving chemical facility safety and security and reducing risks to workers and surrounding communities posed by hazardous chemicals at these facilities.Agencies include: DOL, DOJ, EPA, DHS, DOAOSHA will update the PSM standard soon (SBREFA starting 4/2016?), regulatory changes to improve ammonium nitrate safety, and developing targeted outreach and guidance products
EPA has concurrent effort to amend its Risk Management Program requirements – SBREFA already completed and rule sent to OMB
What About I2P2?Had been OSHA’s Regulatory priority at outset of Obama AdministrationNow removed from regulatory agenda
Update to 1989 SHMP “guidelines” was released for public comment: https://www.osha.gov/shpmguidelines/SHPM_guidelines.pdf
Written comment deadline closed 2/22/16NACOSH heard public input at 3/4/16 meetingPublic “stakeholders” meeting in DC on 3/10/16Next steps???
SHMP requirements often included in corporate‐wide settlement agreements or as condition of informal settlements (often hidden)
Shift to risk‐based approach to safety management
Could this become binding in next Administration???
What role of ANSI Z10 and ISO 45001???
OSHA’s Most‐Cited Standards FY 20151. 1926.501 ‐ Fall Protection2. 1910.1200 ‐ Hazard Communication3. 1926.451 ‐ Scaffolding 4. 1910.134 ‐ Respiratory Protection5. 1910.147 – Lockout/Tagout6. 1910.178 – Powered Industrial Trucks 7. 1926.1053 ‐ Ladders8. 1910.305 ‐ Electrical, Wiring Methods9. 1910.212 ‐Machine Guarding10. 1910.303 ‐ Electrical, General Requirements
Questions????
ADELE L. ABRAMS, ESQ., CMSP301‐595‐3520 EASTERN OFFICE303‐228‐2170 WESTERN [email protected]
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