Attention Employers: 2015 is Already Off and Running Are You Keeping Up? 2015 Health and Safety (OSHA) Law Updates Webinar

Transcription

1 Attention Employers: 2015 is Already Off and Running Are You Keeping Up? 2015 Health and Safety (OSHA) Law Updates Webinar Presented by W. Michael Hanna and Matthew C. Cooper September 16, 2015

2 Overview of OSHA What is it? Federal standards to protect workers from occupational safety and health hazards The OSH Act applies to most private sector employers and their employees. To fulfill the purpose of the Act, OSHA: Sets and enforces health and safety standards Maintains a reporting and recordkeeping system for job-related injuries/illnesses Provides training OSHA State Plans States may develop and implement their own workplace safety and health programs Federal OSHA approval may be required May develop/enforce standards for public sector workers 2

3 Overview of OSHA Impact on Employers Employer/Employee Responsibilities; OSHA Enforcement Employer responsibilities to provide a safe workplace include: Examination of workplace conditions to ensure compliance with OSHA standards Access to safe, properly-maintained tools and equipment Establish and communicate safe operating procedures Providing training Keep records of work-related injuries and illnesses (certain employers exempt) Additional standards for employers with hazardous chemicals or materials Worker responsibilities OSHA Enforcement Complaints Inspections Citations/penalties Appeals process 3

4 Overview of OSHA Common Citations The Top Ten Most Frequently Cited Violations (FY 2014): (1) Fall Protection* (2) Hazard Communication (3) Scaffolding* (4) Respiratory Protection (5) Powered Industrial Trucks (6) Lockout/Tagout * = construction standard (7) Ladders* (8) Electrical, Wiring Methods (9) Machine Guarding (10) Electrical, General Requirements ****The GENERAL DUTY CLAUSE**** (last visited Sept. 9, 2015). 4

5 Expanded Policies & Priorities Updated reporting and recordkeeping rules Effective 1/1/2015 new recordkeeping and reporting requirements Updated list of industries that are exempt from recordkeeping requirements Still exempts employers with 10 or fewer employees, regardless of industry Expanded list of severe work-related injuries and illnesses covered employers are required to report to OSHA All employers must report work-related fatalities within 8 hours, even those exempt from recordkeeping requirements Adds requirement that all employers are required to report work-related in-patient hospitalizations, amputations and loss of an eye within 24 hours New reporting requirements and updated industry lists are available at: 5

6 Expanded Policies & Priorities Expanded enforcement policy over hospitals and inpatient health care facilities Memorandum published 6/25/2015 OSHA promises an increased number of investigations Will focus on major hazard areas: Musculoskeletal disorders (MSDs) relating to patient or resident handling; Workplace violence (WPV)*; Bloodborne pathogens (BBP); Tuberculosis (TB); Slips, trips and falls (STFs). Steps employers should consider taking: Become familiar with new policy, assess existing policies/procedures for compliance Take note of new guidance on MSD factors related to patient or resident handling Train relevant personnel on OSHA investigation standards set forth by new policy 6

7 Impact of New Recordkeeping Rules Thousands of workplaces that didn t have to keep OSHA workplace injury records now must comply with the recordkeeping requirements. Records will be available online in searchable format. The maintenance of records in electronic format will permit OSHA to target employers who experience certain types of illnesses and injuries 7

8 Enforcement Activities - SVEP SVEP ( Severe Violator Enforcement Program ). SVEP which started in 2010 grew by over 20% from July 1, 2013 July 1, As of March, 2015, there were 463 sites on the list Following circumstances will be reviewed for possible handling as SVEP case: Fatality or catastrophe with one willful or repeat citation or failure-to-abate (FTA) notice; Industrial operations or processes exposing employees to high-emphasis hazards, with two or more high-gravity willful or repeat citations or FTA notices; Exposure of employees to hazards related to potential release of highly hazardous chemical, with three or more high-gravity willful or repeat citations or FTA notices; or An egregious (per-instance/ per-employee citation) enforcement action. 8

9 Enforcement Activities - SVEP SVEP action elements for employers who meet SVEP criteria: Enhanced follow-up inspections Nationwide referrals, to include state plan states Increased publicity, to include news releases Enhanced settlement provisions (e.g., full time safety specialist, inspections without warrant, reports to OSHA) Increased use of federal court enforcement action (contempt of court) under Sec. 11(b) of OSH Act (one case referred to Solicitor/filed with court) Corporate-wide settlement agreements 9

10 Enforcement Activities - SVEP (cont d) How to get off the list At one time, the only way to get off was to have the Commission vacate the citation or enter a settlement agreement where OSHA vacated the citation Now First three years must have elasped from final disposition Not automatic - an employer must ask once the waiting period has ended.\ There cannot be any subsequent serious citations for similar alleged violations; otherwise three more years before reevaluation Complete abatement Full compliance with any settlement agreement Removal is not automatic even if the criteria are met. Rather, removal is in discretion of Region if no corporate-wide settlement; in discretion of National OSHA if there is a corporate wide settlement 10

11 Expanded Policies & Priorities New instruction outlining changes to enforcement of Hazard Communication Standard (HCS or HazCom) HCS was revised in March 2012; new instruction effective 7/9/2015 Revision to standard focused on improving classification and labeling of chemicals New instruction establishes policies and procedures for uniform enforcement of HCS, including: Inspection guidelines Interface with other OSHA standards: Generally, if substance-specific OSHA standards have more requirements than the HCS (e.g., asbestos), the employer must comply with the more stringent standards. Specific instructions provided for interface with OSHA standards on: - Hazardous Waste Operations and Emergency Response (HAZWOPER) - Access to employee exposure and medical records - Occupational exposure to hazardous chemicals in laboratories 11

12 Expanded Policies & Priorities Guidelines for restroom access by transgender workers Published 6/1/2015 Provides employers with best practices regarding restroom access for transgender workers Core principle: all employees, including transgender employees, should have access to restrooms that correspond to their gender identity. Model practices: Single-occupancy gender-neutral (unisex) facilities Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls Employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities No employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status 12

13 Recent Legal Decisions Whistleblower I Perez v. Fayad, No GAO (D. Mass. Mar. 31, 2015). Facts: Dental hygienist, uncomfortable with new policy for disposing of contaminated needles, shared her concern with employer dentist. After her concern was dismissed, she filed a complaint with OSHA. District court found there was no clear termination of [hygienist s] employment until OSHA compliance officer visited dental office to conduct safety and health inspection. Court found the hygienist was definitively fired later that day. Hygienist filed a retaliation claim with an OSHA whistleblower investigator. Holding: District court found that the dentist s dismissal of the hygienist constituted a retaliatory discharge under OSHA section 11(c). By filing a health and safety complaint, the hygienist had engaged in activity that was protected under the OSH Act, and dismissal of an employee because she has filed a complaint is prohibited. Damages: Employer-dentist was ordered to pay $85,000 to employee-hygienist. 13

14 Recent Legal Decisions Whistleblower II Perez v. U.S. Postal Serv., No RSM (W.D. Wash. Feb. 12, 2015). Facts: USPS safety specialist Williams advised coworker to contact OSHA after coworker reported breathing difficulties while using machinery, among other concerns. After informing coworker s superiors that OSHA would investigate, Williams experienced an increasingly hostile work environment. Williams remained employed by USPS throughout litigation. Holding: District court found that the Postal Service launched a campaign to punish Williams as a direct consequence of his assertion of rights protected under the Act. Damages: The Postal Service was ordered to pay Williams over $229,000 in economic and non-economic damages. 14

15 Recent Legal Decisions Workplace Violence Sec. of Labor v. Integra Health Management, Inc., OSHRC No (Admin. Ct. Jun. 22, 2015). Facts: Social service coordinator (employee) made several visits to a schizophrenic client s home in an attempt to conduct an initial assessment. In her case notes, the employee reported feeling uncomfortable in the client s presence, and that she would conduct the assessment either outside or in the company of another service coordinator. After making visits for about two months, the employee was fatally stabbed by the client at his home. After investigation, OSHA issued Integra two citations: (1) violation of general duty clause of the OSH Act and (2) violation of OSHA s injury reporting requirement. Holding: Integra s practices of requiring employees to meet in person with clients likely to have a history of violent behavior constituted a recognized hazard, and that Integra s approach to safety was inadequate. Damages: OSHA citations were affirmed. Integra had to pay $7, for Citation 1 and $3, for Citation 2. 15

16 Recent Legal Decisions Construction Citation of Hassell Construction after Trench Collapse Facts: Employee working in 8-foot construction trench was buried when the trench collapsed. Coworkers dug him out, and moments after they pulled him to safety, the trench collapsed once again. The employee was hospitalized with serious injuries. OSHA Citations: Inspection Date: 2/7/2015 OSHA cited Hassell Construction for 16 safety violations, including 6 willful violations for failing to protect workers from a cave-in. Total penalties assessed amount to $423, The company was placed in OSHA s Severe Violator Enforcement Program. 16

17 Emerging Issues OSHA Focus Federal Agency Targeting Inspection Program (FEDTARG) Effective 4/28/2015 Outlines scheduling and inspection procedures for federal establishments Identifies no significant changes for 2015; does not impact state plans OSHA proposal to change permissible exposure limit for beryllium Published in Federal Register 8/7/2015; Comments due by 11/5/2015 Current 8-hour exposure limit: 2.0 micrograms per cubic meter of air; new proposed standard would lower exposure limit to 0.2 micrograms per cubic meter of air NEP on Amputations Effective 8/13/2015 Intended to identify and reduce machine and equipment hazards causing or likely to cause amputations. Expands upon the 2006 NEP on Amputations 17

18 Contact Information W. Michael Hanna Partner (216) Matthew C. Cooper Associate (303)

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