A violation here, a violation there, now OSHA can abate everywhere?

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A recent ALJ ruling in an OSHA case may signal a significant increase in OSHA‚ attempts to enforce standards at locations they have not even inspected. In Secretary of Labor v. Central Transport, LLC (available here), OSHA filed a complaint requesting enterprise-wide abatement. OSHA justified this request by alleging failed corporate policies regarding the safe use of powered industrial trucks (PIT) and alleged violations the PIT standard at other Central Transport locations. When Central Transport moved to strike that portion of the Complaint as an unauthorized exercise of OSHA‚ authority under the Act, the ALJ disagreed.

The ALJ noted that the principal question was whether the Commission has the statutory authority to order the enterprise-wide relief requested based on the facts of the case in front of her. The ALJ found that the other appropriate relief clause in Section 10(c) of the Act should be liberally construed, and could in certain circumstances justify enterprise-wide abatement. The ALJ refused to strike the portion of the complaint requesting enterprise-wide abatement in part because it was still at an early stage in the proceeding.

Despite the ALJ‚ acknowledgement that OSHA‚ request for enterprise-wide abatement was a novel legal theory and that Central Transport could renew its motion to strike after the record was more fully developed, OSHA appears to read the opinion very broadly. In this press release, OSHA calls the opinion significant and precedent setting. The press release also quotes Kim Stille, OSHA‚ regional administrator for New England: When an employer has hazards occurring at multiple locations, common sense and reasonable worker protection law enforcement both dictate that the employer take corrective action to safeguard the health and well-being of employees at all its worksites.

The full effect and reach of the ALJ‚ Central Transport decision is yet to be determined, but companies must be prepared to defend complaints requesting enterprise-wide abatement. Proper preparation would include a robust centralized safety program that not only shares and monitors proactive safety training, but evaluates every OSHA citation to determine how it may affect other locations and internal safety policies.

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OSHA Proposes Non Recordkeeping Rule to Overcome Employer Favorable Court Ruling

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Applying the OSH Acts statute of limitations provisions, in 2012 a Federal Appeals Court ruled that OSHA could not cite an employer for not recording a workplace injury and illness if more than six months had passed from the date that incident was required to be reported.

Unhappy with this court ruling, OSHA has filed a proposed rule which establishes, in part, that failure to record an injury or illness is an ongoing violation. This proposal would have the effect of allowing OSHA to issue recordkeeping citations for and failure to report a required incident as long as 5 and one half years after the alleged recordkeeping violation.

According to OSHA, as long as an employer fails to comply with its ongoing duty to record an injury or illness, there is an ongoing violation of OSHA‚ recordkeeping requirements that continues to occur every day . . . . therefore, OSHA can cite employers for such recordkeeping violations for up to 6 months after the 5 year retention period expires.

Although OSHA does not intend to hold a public hearing on the proposed rule, it is accepting comments through September 28, 2015. Comments may be e-mailed to OSHA at http://www.regulations.gov. If you submit comments you should reference Docket No. OSHA-2015-0006.

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OSHA Reports over 600 Inspections Conducted in July in Region III

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During the month of July 2015, OSHA‚ Region III offices conducted 623 workplace inspections. The majority of these inspections took place in Pennsylvania (250 inspections) and Virginia (233 inspections).

July 2015 Reg 3 by State (15011622)

 

 

 

 

 

The chart below shows that most of the Region III inspections occurred due to Planned/Program-Related activity.

July 2015 Reg 3 by Type (15011623)

 

 

 

 

 

 

 

Please note that not all OSHA inspections are reported on OSHA‚ inspection database website.

If your worksite is inspected, OSHA will generally issue citations from any given inspection within six (6) months from the beginning of the inspection. In federal OSHA plan states, you only have 15 working days to contest the citation, including the proposed penalties and abatement periods set forth therein, from once it is received. If you participate in an informal settlement conference, this participation may not toll the time in which you must issue a notice of contest. If a timely notice of contest is not provided, you may lose your right to contest the proposed citations, including the attendant penalties and abatement periods. Once your notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution of the proposed OSHA citations by filing a complaint against your company. We invite you to contact Tom Ullrich or Derek Brostek with any questions you may have regarding the OSHA citation defense process.

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OSHA Conducts over 700 Region VI Inspections in June 2015

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OSHA‚ Region VI, which encompasses Texas, Oklahoma, Arkansas, Louisiana, and New Mexico, conducted approximately 714 inspections last month. Most of these inspections occurred in Texas.

June 2015 Reg 6 Insp by State Chart

 

 

 

 

The chart below depicts the continuing trend of Planned/Program Related majority inspections in OSHA‚ Region VI in June 2015.

June 2015 Reg 6 Insp by Type Graph

 

 

 

 

 

Please note that not all OSHA inspections are reported on OSHA‚ inspection database website.

If your worksite is inspected, OSHA will generally issue citations from any given inspection within six (6) months from the beginning of the inspection. In federal OSHA plan states, you only have 15 working days to contest the citation, including the proposed penalties and abatement periods set forth therein, from once it is received. If you participate in an informal settlement conference, this participation may not toll the time in which you must issue a notice of contest. If a timely notice of contest is not provided, you may lose your right to contest the proposed citations, including the attendant penalties and abatement periods. Once your notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution of the proposed OSHA citations by filing a complaint against your company. We invite you to contact Tom Ullrich or Derek Brostek with any questions you may have regarding the OSHA citation defense process.

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Over 1,000 OSHA Inspections Conducted in the Month of June in Region IV

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For June 2015, OSHA reported 1,087 inspections conducted in Region IV, which encompasses Kentucky, Tennessee, North Carolina, South Carolina, Mississippi, Alabama, Georgia, and Florida.

15009736.DOC

 

 

 

 

 

OSHA generally conducts inspections on the following bases:

  • Complaint or Referral: Generally lodged by an employee who reports purportedly unsafe working conditions to OSHA or from the media due to reports of an incident (e.g, accident involving injuries) taking place at the worksite;
  • Catastrophes and Fatal Accidents: These investigations usually take place as a result of self-reported fatalities or injuries taking place at the facility (e.g., employer contacts OSHA pursuant to regulations mandating reporting certain incidents)
  • Programmed/Planned: These inspections are typically aimed at industries identified by OSHA as specific high-hazard industries, workplaces, occupations, or health substances, or other industries identified in OSHA‚ current inspection procedures. OSHA selects industries for inspection on the basis of factors such as the injury incidence rates, previous citation history, employee exposure to toxic substances, or random selection. OSHA develops special emphasis programs that are local, regional, or national in scope, depending on the distribution of the workplaces involved. Programmed inspections may take place because the employer appears on a list created by OSHA relating to an emphasis program it has undertaken, including National Emphasis Programs (e.g., fall protection, chemical issues (PSM-related processes));.
  • Follow-up: A follow-up inspection determines if the employer has corrected previously cited violations. If an employer has failed to abate a violation, they will be subject to Failure to Abate violations, which may involve proposed additional DAILY penalties until the employer corrects the violation.

 

Please see the chart below which demonstrates that, consistent with OSHA‚ current enforcement priorities, most of OSHA‚ Region IV inspections in June 2015 were planned/program related.

15009744.DOC

 

 

 

 

 

Please note that not all OSHA inspections are reported on OSHA‚ inspection database website.

If your worksite is inspected, OSHA will generally issue citations from any given inspection within six (6) months from the beginning of the inspection. In federal OSHA plan states, you only have 15 working days to contest the citation, including the proposed penalties and abatement periods set forth therein, from once it is received. If you participate in an informal settlement conference, this participation may not toll the time in which you must issue a notice of contest. If a timely notice of contest is not provided, you may lose your right to contest the proposed citations, including the attendant penalties and abatement periods. Once your notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution of the proposed OSHA citations by filing a complaint against your company. We invite you to contact Tom Ullrich or Derek Brostek with any questions you may have regarding the OSHA citation defense process.

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OSHA Issues Temporary Enforcement Policy for Confined Spaces in Construction

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On May 4, 2015, OSHA issued its final rule on Confined Spaces in the Construction Industry, found at 29 CFR 1926.1201-1213. The rule becomes effective August 3, 2015. However, as matter of policy, OSHA is postponing full enforcement of the rule until October 2, 2015. OSHA has adopted this 60 day postponement to allow employers additional time to train employees and acquire the equipment necessary to comply with the new standard.

During this 60-day period, OSHA will not issue citations to employers who exhibit good faith efforts to comply with the new rule, such as:

  • Scheduling employee training on the requirements of the new rule
  • Ordering new equipment necessary to comply with the rule
  • Taking other alternative measures to protect, and fully educate, employees regarding confined space hazards

Employers are not relieved of the obligation to comply with the rule‚ requirements, but for the next sixty days likely will not be cited for violating the rule if the employer can demonstrate that it has already undertaken concrete steps to become compliant.

Employers engaged in construction activities will be well served to familiarize themselves with the requirements of the new construction related confined space rule. For more information, contact Tom Ullrich or Derek Brostek at Wharton Aldhizer & Weaver.

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REGION III Update: OSHA Conducts Over 600 Inspections Last Month

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REGION III Update: OSHA Conducted Over 600 Inspections Last Month.

From June 1, 2015 through June 30, 2015, approximately 646 inspections were conducted in OSHA‚ Region III. Over 45% of the total inspections were conducted in Virginia. Slightly over 50% of total inspections were conducted in the Construction industry and approximately 20% in the Manufacturing industry. The remaining inspections were conducted in other sectors (Wholesale Trade, Retail Trade, and Transportation & Warehousing).

OSHAs Region III Insp. June 2015 Pie Chart

 

 

 

 

 

Of the inspections conducted in June, most of them were Planned/Program-Related Inspections.

Types of Inspections Conducted in OSHAs Region III June 2015

 

 

 

 

 

The June inspection data for Region III is consistent with OSHA’s current enforcement policy of conducting more thorough inspections under emphasis and other programs, intended to address workplace safety in industry sectors identified as high hazard.

 

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OSHA Cites Staffing Agency Related to Inspection of Host Employer

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In April, 2013, OSHA launched its Temporary Worker initiative expanding, as a matter of policy, its inspection scope to include examination of the use of temporary workers at establishments under inspection. OSHA takes the position that both host employers and staffing agencies share responsibility for worker safety. OSHA will seek to hold staffing agencies responsible for conducting necessary and appropriate training and assessment of hazards in the workplace into which the agency is placing temporary workers. This initiative manifested itself in recent citations issued to a temp agency.

On July 1, 2015, OSHA issued two Serious citations and one Repeat citation, for total proposed penalties of $19,800, to On Target Staffing, LLC, resulting from an inspection at host employer Sterling Seating, Inc., a northern New Jersey furniture manufacturer. Sterling received 25 Repeat and 15 Serious citations, with proposed penalties of over $176,000.

On Target Staffing was cited for Serious violations under OSHA‚ Hazard Communication Standard, 29 CFR 1910.1200, for allegedly: (1) failing to develop a written hazard communication program that would have provided the temp workers with general knowledge associated with the hazardous chemicals to which they would be exposed at Sterling‚ facility; and (2) failing to train the temp workers regarding the health effects and proper protection from the potential hazards existing at the Sterling facility.

The staffing agency also was cited for a Repeat violation for failing to conduct an assessment to identify potential hazards to temporary workers assigned to the Sterling facility. OSHA contends that On Target Staffing was cited for the same violation in 2014, related to a different workplace.

The citations and proposed penalties are not final; On Target Staffing can contest the citations or negotiate a settlement with OSHA which may lead to a change in the citations and/or the penalty amounts.

Nevertheless, more than 2 years into the temporary worker initiative, staffing agencies are on notice that OSHA intends to hold them jointly responsible for making sure that temporary employees are properly educated about, and equipped to deal with, the potential hazards to worker safety that may exist at the facility into which they are placed. In addition, OSHA expects staffing agencies to conduct their own job hazard assessments prior to placing temp workers at a host employer. For more information about these issues, contact Tom Ullrich or Derek Brostek at WAW.

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OSHA Issues Directive on Combustible Dust Accumulation

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In late April of this year, OSHA‚ Director of the Enforcement Programs Directorate, Thomas Galassi, issued guidance to OSHA inspectors on determining permissible levels of combustible dust accumulations. This guidance is intended to augment some of the provisions of the Combustible Dust NEP (CPL 03-00-008).

The guidance directs Compliance Safety and Health Officers (CSHOs) to consider the bulk density of the dust in question before citing an employer for a violation of 1910.22(a)(1) or (2) (General Housekeeping) or 1910.176(c) (Material Handling Housekeeping). Bulk density depends on many factors such as the type of material, dust particle size, and dust particle shape.

The memo also includes specific guidance to CSHO‚ on how to collect dust samples in cases involving low bulk density material, and for sending the samples to OSHA‚ lab in Salt Lake City.

This April 2015 memorandum on Evaluating Hazardous Levels of Accumulation Depth for Combustible Dusts speaks to defenses often available to employers in contested citation cases involving combustible dust, including unreliable or incomplete sample collection by the CSHO, and/or inadequate and unreliable determination of the presence of a hazard i.e., the level of dust accumulation and amount of dust present in a specific area.

In any event, be aware that OSHA recently has taken steps to beef up its inspection and sampling procedure for inspections related to combustible dust.

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Region III OSHA Weekly Report

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The Occupational Safety and Health Administration defines its division of Region III to include Delaware, Pennsylvania, Maryland, District of Columbia, Virginia, and West Virginia.

The Department of Labor recorded 112 inspections conducted in Region III during the week beginning Monday, June 22 and ending Friday, June 26, 2015.

Reported inspections in the Region III States are as follows:

Virginia 56 inspections

Pennsylvania 41 inspections

West Virginia 8 inspections

Maryland 4 inspections

District of Columbia 2 inspections

Delaware 1 inspection

Inspections conducted in the Commonwealth of Virginia totaled fifty-six (56). Of those inspections, thirty-four (34) were construction-related facilities while the remaining twenty-one (21) were done in areas of general industry, as well as one (1) unspecified location.

VOSH, which administers and enforces OSHA in Virginia, reported the following inspections for the week of 6/22-26:

Source of Authority

Planned: 38

Complaint: 7

Referral: 5

Follow Up: 1

Other: 1

Municipality

Arlington 1; Boones Mill 1; Danville 2; Dulles 1; Forest 1; Gainesville 1; Harrisonburg 8; Henrico 3; Lynchburg 2; Mcgaheysville 1; Mclean 2; Midland 1; Norfolk 7; Orange 5; Portsmouth 2; Prince George 1; Purcellville 1; Richmond 2; Roanoke 1; Rustburg 1; Smithfield 3; Suffolk 1; Verona 1; Virginia Beach 7

Scope of Inspection

Partial: 28

Comprehensive/Complete: 20

Other: 8

Nature of Inspection

Construction: 34

General Industry: 21

Unspecified: 1

Please note that not all OSHA inspections are reported on OSHA‚ inspection database website.
OSHA may inspect a worksite under various sources of authority, including inspections
conducted as the result of a complaint- generally lodged by an employee who reports purportedly unsafe working conditions to OSHA; as the result of a referral- generally from the media due to reports of an incident (e.g, accident involving injuries) taking place at the worksite; as part of an OSHA program (programmed inspection)- these inspections take place because the employer appears on a list created by OSHA relating to an emphasis program it has undertaken, including National Emphasis Programs (e.g., fall protection, chemical issues (PSM-related processes)); or self-reported fatalities or injuries taking place at the facility (e.g., employer contacts OSHA pursuant to regulations mandating reporting certain incidents).
If your worksite is inspected, feel free to contact our firm with any questions you may have
regarding the OSHA citation defense process. OSHA will issue citations from any given inspection within six (6) months from the beginning of the inspection. In federal OSHA plan states, you only have 15 working days to contest the citation, including the proposed penalties and abatement periods set forth therein, from once it is received. If you participate in an informal settlement conference, this participation may not toll the time in which you must issue a notice of contest. If a timely notice of contest is not provided, you may lose your right to contest the proposed citations, including the attendant penalties and abatement periods. Once your notice of contest is received, OSHA or its state-plan equivalent will initiate the prosecution of the proposed OSHA citations by filing a complaint against your company.

Source: www.osha.gov

 

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