Scott Mugno: Trump’s Pick for Assistant Secretary of Labor

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Profiles: Here is what you should know about Scott Mugno, President Trump’s nominee for Assistant Secretary of Labor for the Occupational Safety & Health Administration.

On October 27, 2017, President Trump announced his intent to nominate Scott Mugno as the next Assistant Secretary of Labor for the Occupational Safety and Health Administration, a position that is temporarily filled by Deputy Assistant Secretary Loren Sweatt. If Mugno’s nomination is confirmed, he would supervise regional and area offices and have the responsibility to ensure employers comply with the OSHA regulations and standards.

Mugno received his bachelors of sciences from St. John’s University, and attended law school at Washburn University of Topeka. Since 2011 Mugno has been the Vice President of Safety, Sustainability, & Vehicle Maintenance at FedEx Ground.  Mugno has also served as the Managing Director for Corporate Safety, Health, and Fire Prevention and Senior Attorney for FedEx.  According to the White House Press Release, Mugno’s was a two time recipient of FedEx’s highest honor, the FedEx Five Star Award, for his safety leadership.

Prior to his time at Fed Ex, Mugno worked for the Westinghouse Electric Company as Senior Counsel, and as a Judge Advocate for the General’s Corp in the United States Army.

Mugno serves on multiple committees related to occupational safety and health, including: the National Academies of Science, Engineering, and Medicine, the American Trucking Association, and he is the chairman of the U.S. Chamber of Commerce OSHA subcommittee.

After Trump officially nominates Mugno for Assistant Secretary of Labor for the Occupational Safety and Health Administration, the nomination will be passed to the Senate for consideration and debate until two-thirds of the Senate vote to invoke cloture. The Senate must confirm Mugno’s nomination by a majority vote.

 

For updates on the nomination of Scott Mugno visit whitehouse.gov

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11th Circuit to Rule on Mar-Jac Poultry Case

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11th Circuit to Rule on Mar-Jac Poultry Case

On August 22, 2017, the 11th Circuit heard oral arguments for USA. v. Mar-Jac Poultry, Inc. on the issue of whether an OSHA Area Director can expand the scope of an investigation to a comprehensive inspection based on the entries in a Log of Work-Related Injuries and Illnesses (often referred to as a “300 Log”).

An OSHA 300 Log is a form for employers to record all injuries and illnesses that occur in the workplace, including: where and when the injury/illness occurred, the nature of the injury/illness, the name and role of the employee, and the number of days the employee missed work or had “restricted” or “light duty”.  Noticeably missing from the list of required recorded information is the causation of the workplace injury/illness.  This is because employers are not required to document this information on their 300 Log—a factor that plays a key role in the case before the 11th Circuit.

In USA v. Mar-Jac Poultry, Inc. OSHA conducted an investigation at Mar-Jac’s poultry processing facility after a February 2016 accident.  The accident required the hospitalization of an employee after he sustained first, second, and third degree burns in the course of conducting maintenance work. Mar-Jac fully cooperated with the investigation into the accident and took the CSHO to the site of the injury and permitted her to examine the tools involved in the accident.  Upon request, Mar-Jac provided the CSHO with the 300 Logs of Work-Related Injuries and Illness for the past three years.

The CSHO analyzed the data in the 300 Logs and determined, based on the entries, that there were indications of OSHA violations in six areas unrelated to the February 2016 injury. OSHA then sought an administrative warrant authorizing the agency to inspect (among other things) the six hazards solely implicated by the OSHA 300 logs.

A magistrate judge granted the warrant in its entirety, and Mar-Jac moved to quash the warrant. The District Court granted Mar-Jac’s motion to quash OSHA’s warrant to expand the investigation.  The Court found that OSHA did not have evidence to support a search for the hazards based entirely upon the potential hazards identified in the 300 Log.

The District Court noted that it is not evident from the entries in the 300 Log whether the injuries or illnesses resulted from an OSHA violation.  According to the District Court, the “mere presence” of an injury on a 300 Log is an insufficient basis for expanding the investigation. The Court then distinguished “hazards” from “violations”,  noting that hazards were likely abundant in dangerous workplaces like poultry processing plants, but a “hazard” does not become a “violation” until an employer fails to comply with an OSHA standard.  OSHA appealed the District Court’s decision in regards to the hazards solely implicated by the 300 Logs.

In the brief for the 11th Circuit, OSHA heavily relied on its “expertise and prior studies” of the poultry industry and its hazards as evidence that the request to expand the scope of the search is reasonable.  According to OSHA, the connection between injuries and hazards identified in the 300 logs—coupled with OSHA’s expertise of industry hazards—satisfies OSHA’s burden of proof for an administrative warrant.  OSHA contended it must merely “identify specific evidence of an existing violation” to obtain a warrant, and this evidence was satisfied by the 300 Log entries.

Mar-Jac contended that the District Court properly applied the legal standard for an administrative warrant, and determined that the 300 Log did not indicate “specific evidence of an OSHA violation”. Mar-Jac commented, “ . . . it defies understanding how OSHA takes knife cut injuries and concludes that those implicate machine guarding issues.” According to Mar-Jac, the Court correctly distinguished “hazards” from “violations”. Mar-Jac pointed to the 11th Circuit’s decision in Donovan v. Sarasota Concrete, which determined that a “specific complaint or report of a work-related injury or illness did not, without more, provide sufficient probable cause to expand an investigation beyond the condition or incident complained of or reported.”[1]  Furthermore, Mar-Jac argued that 300 Logs do not differentiate between hazards and violations because the causation of the injury is not recorded on the form. Mar-Jac contended that the 300 Log is merely a collection of information.

The 11th Circuit has not yet released its decision in USA. v. Mar-Jac Poultry, Inc., but during the oral argument the Judges expressed their concern about the potential for “unbridled discretion” of OSHA  Area Directors.  No doubt a favorable outcome for Mar-Jac, Inc. will be viewed as a victory for all employers weary of the possibility of “unbridled” OSHA inspections.

[1] Donovan v. Sarasota Concrete, 693 F.2d 1061, 1068-69 (11th Cir. 1982).

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Regulatory Agenda Offers Companies Brief Glimpse into Trump Administration’s Plans

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Regulatory Agenda Offers Brief Glimpse into Trump Administration’s Plan

On July 20, 2017, federal agencies released their regulatory agendas.  The U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) offered fourteen items.  The agenda items ranged from seemingly minor issues, such as correcting typographical errors to reduce burdens on employers— to tackling larger concerns weighing on the mind of companies. The delay and revision of the “electronic record-keeping rule” and a proposed change to the “Lock-Out/Tag-Out” standard are two interesting items on the agenda that give some insight into the regulatory plan of the Trump administration.

The new administration announced its intention to delay and revise the “electronic record-keeping rule”. The Obama era “electronic record-keeping rule” required employers to electronically report workplace injuries and illnesses in a data collection system.  An undesirable result of this regulation for many employers is that employer injury data would be available to the public.  Additionally, the rule contained anti-retaliation provisions that could effectively terminate some safety incentive programs, as well as post-injury discipline and post-injury drug testing.

Many employers may be pleased to discover that the agenda indicated that the new administration postponed the deadline to submit workplace injuries and illnesses from July 1, 2017 until December 1, 2017. Furthermore, the “electronic record-keeping rule” will be reconsidered in October 2017. This delay provides the Trump administration an opportunity to revise the rule, and allows employers to further review the electronic reporting requirements.

Employers expecting sweeping deregulations from the Trump administration may be surprised to discover the Standards Improvement Project-Phase IV (SIP-IV) regulations on the agenda. The SIP-IV regulations included the Obama administration’s “Lock-Out/Tag-Out” standard, which proscribed procedures for disabling machinery to ensure the safety of employee’s engaged in service and maintenance activities.

The Obama era standard sought to resolve conflicting applications of the rule to “unexpected energization” of equipment. The SIP-IV revision proposed removing the word “unexpected” from the phrase, “servicing and maintenance of machines and equipment in which the [unexpected] energization or start-up of the machines or equipment, or release of stored energy could harm employees.” Removal of the term “unexpected” would mean that the “Lock-Out/Tag-Out” standard could apply to all equipment maintenance involving stored energy hazard, which would broaden the scope in which companies must apply the standard.

Though SIP-IV remains on the regulatory agenda, it was accompanied by a new, seemingly flexible, “Lock-Out/Tag-Out” standard. The Trump administration’s proposed standard takes into account recent technological advancements—specifically computer-based controls of hazardous energy—that conflict with the current “Lock-Out/Tag-Out” standard.  The Trump administration is prepared to examine the increasingly prevalent technology to determine its potential hazards and limitations. This is an important consideration because other countries have already updated their “Lock-Out/Tag-Out” standards to accommodate the technological changes, and it may be beneficial to harmonize the United States standard to be compatible on an international scope.

While the agenda provides some insight into the Trump administration’s agenda, many questions are left unanswered. Considering that an OSHA administrator has not yet been named, the agenda only offers a brief glimpse into the new administration’s plans. Employers will have to wait a while longer for a clearer picture to crystalize. For a full list of the items on the agenda you can visit the Office of Information and Regulatory Affairs website at reginfo.gov.

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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 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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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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OSHA Expands Use of Enforcement Resources in Healthcare Inspections

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On June 25, 2015, OSHA issued a memorandum establishing guidance for inspections of inpatient healthcare facilities hospitals, nursing, and residential care facilities. OSHA has directed its Compliance Safety & Health Officers (CSHOs) to focus on:

  • Musculoskeletal disorders (MSDs) relating to patient or resident handling
  • Workplace violence
  • Blood borne pathogens
  • Tuberculosis
  • Slips, trips, or falls
  • Exposure to multi-drug resistant organisms, such as Methicillin-resistant staphylococcus aureus (MRSA)
  • Exposures to hazardous chemicals, such as sanitizer, disinfectants, anesthetic gases, and hazardous drugs

 

Of particular note is OSHA‚ heightened focus on MSDs and workplace violence. In citing healthcare facilities under this enforcement guidance, OSHA intends to continue and expand its practice of alleging violations of the General Duty Clause which requires employers to provide workplaces free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. OSHA uses the General Duty Clause to support citations for hazardous ergonomic conditions as well as potential workplace violence hazards.

Recently, OSHA has been aggressive in pursuing citations related to MSDs in other industries such as poultry processing, and with this new memorandum OSHA signals its intent to expand this aggressive approach to healthcare as well.

MSD Inspections

At the beginning of the inspection, CSHOs will ask for the maximum census of patients/residents and the existing census at the time of inspection. CSHOs also will ask about the degree of ambulation of the patients/residents, to assist in evaluation of the degree of ergonomic (MSD) hazards that may be present. The CSHO also will assess whether the establishment has implemented a process to address ergonomic hazards. If so, the CSHO will examine that program to determine whether it is appropriately managed and implemented and that employees have been properly trained in recognition of ergonomic hazards, and proper work technologies to avoid MSDs.

Workplace Violence

The CSHOs are directed to investigate for the potential or existence of violence hazards. Among other things, CSHOs will want to see hazard assessments, whether a workplace violence prevention program is in place, the identity of all employees in charge of security, and information regarding employee training programs and methods used to inform workers of the potential for, and prevention of, workplace violence.

Although some of these focus hazards were a part of OSHA‚ National Emphasis Program Nursing and Residential Care Facilities, there can be little doubt that this newly issued enforcement guidance signals a likely expansion of OSHA‚ inspections of healthcare facilities, particularly given OSHA‚ assertion that inpatient healthcare settings have some of the highest rates of injury and illness in the nation, and have high incidences of workplace violence.

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VOSH Implements Employee Misclassification Initiative

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In conducting Inspections, VOSH now also will evaluate whether the employer has improperly classified workers as independent contractors. Some employers may attempt to reduce payroll costs by treating workers as independent contractors rather than as direct employees. Virginia Governor Terry McAuliffe recently issued an executive order directing state agencies to evaluate whether workers are properly classified, asserting that an unfair competitive advantage is realized by employers who improperly lower payroll costs by misclassifying employees as contractors. The Governor‚ directive does not alter the familiar test for proper classification of a worker as an employee or a contractor. For VOSH that evaluation will be conducted during an OSHA inspection. If VOSH finds misclassification, here is what they will do about it:

VOSH Policy
Effective July 1, 2015, where VOSH has reasonable cause to believe that worker misclassification has occurred in a VOSH case, the following actions will normally be taken:

• In the event that citations and penalties are proposed for the employer, penalty reductions for size and good faith will NOT be afforded to the employer

‚Ä¢ In construction multi-employer worksite situations, each contractor (e.g., general contractors, prime subcontractors and lower tier subcontractors) will be asked to provide proof of their Department of Professional and Occupational Regulation (DPOR) contractor’s license AND for proof of the DPOR license for any of its’ subcontractors

• When it is determined that a construction employer has contracted with an unlicensed subcontractor, VOSH will make a written referral to DPOR for the contractor and its unlicensed subcontractor (DPOR sanctions for contracting with unlicensed subcontractors may include fines, probationary terms, suspension or license revocation)

‚Ä¢ In cases where the contract value for the specific subcontractor’s job is less than $1,000.00, VOSH will make a written referral to the Virginia Employment Commission (VEC) and/or the Virginia Workers’ Compensation Commission (VWCC) for potential audits of the employer’s employment practices. There may be instances where referrals will be made for contract values over $1,000.00 as well.

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