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OSHA: ACTIVE AGENCY AGENDA, INCREASED ENFORCEMENT EFFORTS AND LEGAL UPDATE

By Andrew Levy and Joseph Sileo

The Occupational Safety and Health Administration (OSHA), the primary federal agency charged with responsibility for enforcing workplace health and safety regulations, has been very active under the Obama Administration. In recent years, significant rulemaking and new standards, along with more aggressive and increased investigations and other enforcement efforts, have been the norm with OSHA.

This has not been welcome news for employers. OSHA’s more intensive approach has resulted in more frequent violations, significantly more violations that are classified as serious, and greater fines and penalties. For example, the average OSHA penalty for a serious violation, approximately $1000 in 2010, has more than doubled to in excess of $2,000. In November 2013 alone, OSHA issued 13 separate six-figure penalties to various employers.

There is no indication that OSHA’s more active and aggressive approach will scale back any time soon. While placing a top priority on workplace safety is always advised, employers must now also stay ahead of the curve with respect to OSHA’s regulatory and enforcement agenda. This paper will summarize many of the most significant new developments of the past year and highlight a few of the rulemaking priorities on the horizon. Also be sure to keep up with the latest developments on our blog.

 OSHA’S New Hazard Communication Standard

Since 1983, OSHA has maintained a Hazard Communication Standard (HCS) to ensure that hazards associated with workplace chemicals are properly classified and that employers and workers are informed of and communicate regarding potential health and safety hazards related to workplace chemicals. In December 2013, OSHA began a phased-in implementation of its new HCS in an effort to enhance workplace health and safety by aligning the classification and labeling of chemicals in the U.S. with international standards as established by the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). OSHA considers the new standard a significant upgrade that will advance workplace safety. In OSHA’s words, although its prior HCS afforded employees “the right to know” about potential chemical-related hazards, its new standard affords employees the “right to understand.”

The new HCS and related training requirements apply to all private sector employers, regardless of size or industry, that maintain or use any hazardous chemicals in their workplaces.

The enhanced requirements of the new HCS address these issues:

Hazard Classification – Under the new standard, chemical manufacturers and importers must follow a more uniform standard procedure, with specific established criteria, for classifying health and physical hazards associated with workplace chemicals.

Chemical Labels – The new standard requires more detailed labels, and specifically sets forth what information must be included for each identified hazard classification and category. In addition, labels must convey the required information in an employee-friendly manner, by use of standard and easily recognizable pictograms, signal words, hazard statements, and precautionary statements.

Safety Data Sheets – Under the new standard, the familiar Material Safety Data Sheet (MSDS) will be phased out and replaced by a new Safety Data Sheet (SDS) that must be completed and maintained in a specific 16-section format for each workplace chemical.

Information and Training – Separate from already required HazCom training for new employees and when a new chemical is introduced into the workplace, employers must provide initial additional training regarding the new HCS to ensure that workers understand the new label elements and SDS format.

The schedule by which the new HCS requirements will be phased-in over time is as follows:

December 1, 2013 – Employers were required to train employees on the new label elements and SDS format.

June 1, 2015 – Full compliance with the new HCS (including use of the new labels and SDS format) is required, except that chemical distributors have until December 1, 2015 before containers must be shipped with GHS compliant labels.

June 1, 2016 – Employers must update workplace labeling and hazard communication programs as necessary, and provide employee training with respect to any new physical or health hazards identified by a hazard classification.

 Although not required to beginning using the new SDS and labels for some time, the first phase of compliance required employers to provide training to employees with respect to the new SDS format and label elements ,by December 1, 2013. Now through the June 1, 2015 full compliance employer deadline (the “transition period”), employers have the option to comply with either the new or old HCS, or both. As a practical matter, this means that employers can continue to use the outgoing MSDS form and chemical labels, elect to use the new SDS form and labels, or do both, during the transition period.

Some employers and commentators have questioned the wisdom of requiring employee training as the first phase of compliance (by December 1, 2013) when actual use of the new SDS format and labeling elements is not required until 2015. OSHA has explained its rationale for this by noting that early training on the new requirements in advance of full implementation will benefit employees, particularly when the new GHS-compliant SDS forms and chemical labels are already in use voluntarily by some U.S. employers and that trend is likely to continue and increase during the transition period and as the full compliance date draws closer.

Employers are advised to do the following to ensure compliance with the new HCS:

Conduct the required initial employee HCS training ASAP if you have not already done so;

Become familiar with the new SDS form and labeling requirements;

Begin actual use of the new SDS forms and labels sufficiently in advance of June 1, 2015 to ensure a smooth transition into full compliance and to reduce potential liability due to non-compliance; and

Prepare in advance of June 1 , 2016 to revise programs/polices to reflect the new HazCom standards and conduct additional required training as necessary related to any identified new hazards.

For additional information and resources concerning the new HCS, employers may wish to reference the Hazard Communication page on OSHA’s website at www.osha.gov/dsg/hazcom

Coming Soon? OSHA’s Proposed Regulation to Require Employers to Submit Recordkeeping Data Electronically and Make Such Information Publicly Available

In November of 2013, OSHA issued a proposed regulation that would require most large employers to electronically submit to OSHA the recordkeeping data currently required on the OSHA 300 Log, OSHA 301 Incident Report and OSHA 300A Annual Summary. OSHA has made clear that it would make most of the information (absent names and other personal identifiers) public via a searchable online database. The public comment period for the proposed regulation recently closed and a final rule could be issued soon.

According to OSHA:

“The purpose of this rulemaking is to prevent workplace injuries, illnesses, and fatalities through the collection, public posting, and analysis of useful, accessible, establishment-specific injury and illness data. …this information will also help OSHA use its resources more effectively by enabling OSHA to identify the workplaces where workers are at greatest risk.”

 The public comment period relating to the proposed rule closed in March of 2014, with industry groups having voiced strong concerns over OSHA’s intent to make recordkeeping data publicly available.

The proposal would require employers with 250 or more employees in non-exempt industries to submit all information from OSHA forms 300 and 301 to OSHA electronically on a quarterly basis. The OSHA form 300A would be submitted electronically once on an annual basis. Although covered employers must currently maintain these forms and enter new cases on the OSHA 300 Log within 7 days of any recordable injury or illness, the data from the forms are not currently provided to OSHA except upon request, as in the case of an OSHA inspection at a specific facility. In addition, employers with more than 20 employees and fewer than 250 employees in certain covered industry classifications would be required to electronically submit their annual summary of injury and illness data (Form 300A) to OSHA.

Employers and industry groups are concerned that increased reliance upon recordkeeping information when targeting establishments for inspection, and the public availability of the information, will serve to hold employers accountable for the mere occurrence of a recordable incident. The recordkeeping standards have historically been thought of as a no-fault system: work-related incidents need to be recorded even if they are unpreventable. The proposed system would seem to reward employers who under-report, and could punish employers with robust safety programs and effective incident reporting systems. There are also concerns that unions could utilize their access to the information to mischaracterize employers’ safety records during organizing campaigns.

Given the current climate at OSHA it seems likely that the rule will be issued in the near future. Perhaps some of industry’s concerns will be taken into account in the final rule, but don’t count on it!

OSHA’s Temporary Workers Initiative

OSHA is in the process of issuing a series of guidance documents as part of its temporary worker initiative (see www.OSHA.gov/temp-workers/). The initiative focuses on compliance with safety and health requirements when temporary workers are employed through a staffing agency. The initiative was launched due to the high rate of serious or fatal injuries suffered by temporary workers, many during their first days on the job.

The first set of guidance documents issued under the temporary worker initiative relates to recordkeeping requirements. The guidance makes clear that injury and illness recordkeeping responsibilities under 29 CFR Part 1904 are determined based on day-to-day supervision. OSHA believes that, in most cases, the host employer will have responsibility for day-to-day supervision and, therefore, must record the injuries and illnesses of temporary workers employed at the establishment.

Essentially an employer is performing day-to-day supervision when that employer controls conditions presenting potential hazards and directs the worker’s activities around, and exposure to, those hazards.

OSHA Recordkeeping FAQ 31-1.

It is important that employers engaging workers through temporary staffing agencies have a clear understanding as to the respective safety responsibilities relating to the workers, including which firm will record injuries and illnesses to such workers. More importantly, the staffing agency and the host employer must work together to ensure clear lines of responsibility with respect to safety training, and other workplace safety matters. It is OSHA’s position that: “Host employers must treat temporary workers like any other workers in terms of training and safety and health protections.”

OSHA’s temporary worker initiative combines outreach and training efforts, such as the guidance documents, with increased enforcement in this area. Employers who utilize temporary staffing agencies should have systems in place to ensure proper safety training (including job-specific training), job instruction, PPE and safe working conditions for temporary workers. OSHA will focus upon safety responsibility for temporary workers during inspections; it is important, therefore, that the respective responsibilities of staffing agency and host employer are appropriately coordinated before OSHA comes knocking.

Silica: What is it? and OSHA’s Proposed New Standard

OSHA’s current Silica standards set the Permissible Exposure Limit (PEL) for the maximum amount of airborne crystalline silica to which workers may be exposed at 250 micrograms per cubic meter of air in the construction industry and 100 micrograms per cubic meter of air in other industries, averaged over an eight hour day. (29 C.F.R. 1926.55, 1910.1000). On September 12, 2013, OSHA announced and published a proposed new Silica standard in the Federal Register. That proposed new standard, if adopted, will equalize and substantially reduce the Permissible Exposure Limit (PEL) for silica exposure in both construction and non-construction industries to 50 micrograms of crystalline silica per cubic meter of air, averaged over an eight hour day. The new standard would cut permissible silica exposure limits by 50% for general industry and by 80% in the construction industry!

The proposed standard also includes new detailed requirements for measuring employee exposure to silica, limiting employee access to identified higher exposure areas, use of effective methods for reducing exposure, providing medical exams to workers who are subject to elevated exposure, and employee training addressing the hazards of silica exposure and how to limit exposure. In support of its proposed standard, OSHA has noted that many responsible employers already voluntarily follow industry consensus standards with similar requirements.

In addition to the its existing and proposed new standards, OSHA also currently has a Special Emphasis Program for Silicosis (first established in 1996) and a complementary National Emphasis Program- Crystalline Silica (established in 2008) which targets worksites in industries with historically elevated exposures to crystalline silica for inspection, and establishes uniform silica-related inspection procedures.

Silica, what is it? Silica is a naturally occurring, basic component of soil, sand, granite, and many other minerals. Silica can take on either of two forms: smooth or sharp (crystalline). Quartz is most common form of crystalline silica. When objects or materials containing crystalline silica are fractured or broken apart–such as by blasting, crushing, chipping, cutting, drilling, or grinding–tiny respirable sized particles of “silica dust” are produced.

What are the dangers? Although solid forms and larger grains of silica are not known to be harmful in and of themselves, breathing in silica dust can be very dangerous and lead to serious medical concerns. Crystalline silica has been classified as a human lung carcinogen. In addition, inhaling crystalline silica dust can cause silicosis (a sometimes disabling and occasionally fatal serious lung disease). OSHA estimates that the proposed new standard, if it becomes a reality, will prevent thousands of respiratory illnesses and hundreds of deaths annually.

Who can be exposed to Silica? According to OSHA, Silica exposure presents a serious threat to nearly 2 million U.S. workers. The most severe exposures to crystalline silica result from sandblasting and other higher risk jobs involving abrasive blasting, foundry work, stonecutting, rock drilling, quarry work and certain construction work (such as jack hammering, concrete mixing, and brick and concrete cutting and sawing). Silica exposure can also occur in the gas drilling industry, where the handling and use of sand as a component of hydraulic fracturing fluid can result in the release of silica dust that presents a risk of exposure to workers. Other potential exposures to silica dust can occur in connection with cement manufacturing, asphalt pavement manufacturing, renovation and demolition, paint removal, in the electronics industry, in manufacturing abrasives/paints/soaps/ and glass, and when working with certain materials used for filtration in food and beverage production.

The extended comment period on the proposed new silica standard closed in February of 2014, and the DOL held informal public hearings on the subject in March and April. Industry groups have voiced concerns over the dramatic decrease in the PEL and the significant potential burdens that it would impose. What will happen with the proposed regulation? Stay tuned

Other Items on OSHA’s Regulatory Agenda

In addition to the regulations discussed above, OSHA’s 2014 agenda includes many other initiatives and regulatory priorities that could significantly impact many employers and industries. Employers in affected industries should also be mindful that big changes could be coming from OSHA soon. A sampling of some of the other potentially significant items on OSHA’s 2014 agenda includes:

Combustible Dust– OSHA is working on developing a new standard with greater protections than as required by the National Fire Protection Association (NFPA);

Infectious Diseases– OSHA is considering the need for new regulations to reduce potential risk of employee exposure to infectious diseases, particularly in the health care industry;

Whistleblower Protections– New rules have been proposed to establish more consistent and transparent whistleblower compliant filing procedures; and,

Injury and Illness Prevention Program (I2P2)– For years, OSHA has been interested in developing a rule requiring employers to implement Injury and Illness Prevention Programs. I2P2 is intended to facilitate ongoing employer and worker collaboration to find and fix workplace hazards before workers are injured or become ill.

OSHA Prevails in General Duty Clause Battle with SeaWorld

In the much-publicized case, SeaWorld of Florida, LLC v. U.S. Department of Labor, the United States Court of Appeals for the District of Columbia Circuit recently upheld a ground-breaking citation issued to SeaWorld under the General Duty Clause following the death of a SeaWorld trainer during a live performance with a killer whale. The incident, featured in the movie Blackfish, occurred when trainer was interacting with Tilikum, a killer whale who had been involved in prior acts of aggression toward SeaWorld trainers. During the show, the trainer reclined on her back on a platform a few inches below the surface of the water and Tilikum was supposed to mimic her behavior by rolling over. Instead, Tilikum grabbed the trainer off the platform and pulled her down into the pool, eventually resulting in her death. Following an inspection, OSHA issued SeaWorld various citations, including one classified as a willful violation of the General Duty Clause for exposing animal trainers to the recognized hazard of drowning or injury when working with killer whales during performances.

To establish a violation of the General Duty Clause, OSHA must show that: 1) an activity or condition in the employer’s workplace presented a hazard to an employee; 2) either the employer or the industry recognized the condition or activity as a hazard; 3) the hazard was likely to or actually caused death or serious physical harm; and 4) a feasible means to eliminate or materially reduce the hazard existed. Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077, 1081 (D.C. Cir. 2007). After the original citation was issued, a lengthy hearing was held before an Occupational Safety and Health Review Commission Administrative Law Judge. The ALJ found that all elements of the General Duty Clause violation existed; however, the ALJ did not agree that OSHA had proven the existence of a willful violation. The ALJ determined that OSHA had failed to present evidence that SeaWorld had a “heightened awareness of the illegality of its conduct” or manifested “planned indifference to employee safety.” As such, the ALJ found that SeaWorld had violated OSHA’s General Duty Clause, but that the violations were “serious,” not “willful.” After SeaWorld appealed to the United States Court of Appeals for the District of Columbia Circuit, a three member panel found 2-1 that OSHA had proven the elements of a General Duty Clause violation and, thus, the ALJ’s decision was affirmed on appeal.

The issues before the Court of Appeals focused upon whether OSHA had proven a recognized hazard and a feasible means of abatement. SeaWorld argued that OSHA could not prove existence of a recognized hazard because its extensive training and safety program adequately controlled the risk. However, the Court of Appeals noted that numerous prior incidents had occurred involving acts of aggression by the whales against the trainers. In other words, the Court of Appeals found that SeaWorld knew that close contact with killer whales during performances was dangerous, and that the training and safety program did not eliminate the hazard.

The most significant issue in the SeaWorld case involves whether an inherently dangerous business activity can constitute a “recognized hazard” under the General Duty Clause. SeaWorld’s argument on this point was closely related to its position that OSHA could not prove a feasible means of abatement without changing the nature of the killer whale performances. SeaWorld asserted that OSHA does not have the authority to prohibit a dangerous show performance or to outright prohibit inherently dangerous jobs: that OSHA had no more authority to prohibit close contact with killer whales during performances than it would to prohibit tackling in NFL football or high speeds in NASCAR racing. While the Court recognized that Congress did not afford OSHA the authority to prohibit an inherently dangerous business activity that cannot be made safer through feasible means, ultimately, the Court sided with OSHA’s finding that SeaWorld could feasibly abate the hazard without changing the essential nature of its shows, by placing a physical barrier between the killer whale and the trainers or maintaining a minimum safe distance between the whale and the trainers during live performances. In this regard, it is significant to note that the Court relied heavily on OSHA’s evidence that SeaWorld actually initiated self-imposed limitations on close contact between trainers and killer whales following the fatality. Employers should be aware that evidence of subsequent remedial measures can be admissible to prove feasibility in OSHA proceedings.

The SeaWorld decision seems to push the boundaries of the General Duty Clause. Does OSHA now get to decide whether a dangerous aspect of an entertainment show is really necessary to the performance? Taking that a step further, would OSHA get to decide whether a product feature which is dangerous to manufacture is really a necessary part of the product, or whether a building or structure design that might be dangerous to construct is really an essential part of the structure? While OSHA might not push the argument that far, it certainly will try to apply the SeaWorld decision to other hazards in the entertainment and theme park industry. Meanwhile, SeaWorld’s only remaining avenue of appeal is to the United States Supreme Court. Whether or not the Supreme Court reviews the SeaWorld decision, it is safe to say that these issues will be tested before the Occupational Safety and Health Review Commission and in the Appeals Courts for years to come.

 Conclusion

OSHA is the now one the most active and aggressive government players in the realm of employment law compliance. Complex and frequently changing regulation, increased investigations, more aggressive enforcement efforts, and larger fines are now the norm. In addition to regularly reviewing and updating workplace safety policies, programs and internal compliance efforts, employers must keep informed of the ever changing OSHA landscape and the many new, in progress and proposed changes to workplace safety standards.

If you would like further legal assistance concerning OSHA compliance or enforcement matters, please contact one of the attorneys in our Labor & Employment practice group. Of course, we will also provide updates throughout the year at on our blog at PaLaborAndEmploymentBlog.com.