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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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 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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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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