Safety Compliance Lookout: The Top 5 Things to Watch Out for With OSHA in Sponsored by

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1 Safety Compliance Lookout: The Top 5 Things to Watch Out for With OSHA in 2016 Sponsored by

2 OSHA Top 5 Trends for 2016 ADELE L. ABRAMS, ESQ., CMSP LAW OFFICE OF ADELE L. ABRAMS PC LAW.COM

3 Overview Heading into home stretch of Obama Administration Issues: Which S&H issues will be on Congress radar screen in 2016? Will delays continue at OIRA/OMB in releasing rules for comment or finalization? What enforcement tools will be used in remaining months

4 Overview OSHA enforcement priorities: NEPs & GHS HazCom Contractor and Temporary Worker Safety Recordkeeping and Reporting Requirements (more event driven inspections likely) Whistleblower prosecutions (Sec. 11(c)) Inspection weighting and more use of GDC More use of SVEP, CSAs & criminal prosecutions and higher civil penalties!

5 Overview OSHA continues its National Emphasis Programs (NEPs) Federal OSHA emphasis areas include: Crystalline Silica Combustible Dust Hazardous machinery (LOTO) Amputations Hexavalent Chromium & Lead Trenching & Excavations Process Safety Management

6 GHS Hazard Communication GHS revisions to OSHA s Hazard Communication Standard, 29 CFR were in March 2012 final rule Manufacturers, importers and distributors were to update SDSs and labels for products packaged and shipped after 6/1/2015 extensions granted if good faith effort made to obtain updated info Employers were to train all employees on GHS elements (new pictograms, SDS format, labeling, signal words) by 12/1/2013 All updated elements can be enforced against employers 6/1/2016 (unless extension granted) Guidance for manufacturers released in 2015 Additional guidance on Weight of Evidence for data evaluation now open for comment until 5/2/2016

7 SVEP CPL (SVEP) took effect 6/18/2010 and sets forth parameters of program. Focuses enforcement efforts on employers who willfully and repeatedly endanger workers by exposing them to serious hazards. Establishes procedures and enforcement actions for SVEP, including increased inspections, mandatory follow up inspections of a workplace found in violation and inspections of other worksites of the same company where similar hazards or deficiencies may be present. Targets those who commit willful, repeated or failure to abate violations in one or more of the following circumstances: a fatality or catastrophe situation; in industry operations or processes that expose workers to severe occupational hazards; exposing workers to hazards related to the potential releases of highly hazardous chemicals; and all egregious enforcement actions.

8 SVEP Once under SVEP remain there for at least 3 years! Will trigger inspections at all worksites based on certain types of violations found during initial inspections Repeat citations or failure to abate notices based on a serious violation related to the death of an employee or three or more hospitalizations. Violations under this section do not need to be classified as High Emphasis Hazards. A High Emphasis Hazard is one based on a fall or a specific National Emphasis Program (NEP) Non Fatality/Non Catastrophic High Emphasis Hazards. An inspection which finds two or more Willful or Repeat violations or failure to abate notices based on high gravity, serious violations due to a High Emphasis Hazard. All egregious enforcement actions (cases where OSHA has alleged instance byinstance violation of a particular standard) will be considered SVEP cases.

9 DOL/DOJ MOU: Criminal Prosecution 12/17/15: DOL/DOJ entered an MOU to work cooperatively in bringing more criminal prosecutions under the OSH Act and Mine Act, and under other federal statutes with more stringent sentences US Attorneys are urged to use EPA laws (with felony provisions) and 18 USC (obstruction of justice, conspiracy, false statements, witness tampering) to impose sentences that could reach 20+ years DOL/DOJ MOU suggests that workplace violations may be prosecuted creatively by using Clean Air Act, Resource Conservation & Recovery Act, and Toxic Substances Control Act DOL will also seek criminal prosecution for violations of child labor laws that endanger workers.

10 Federal OSHA Criminal Sanctions DOJ/DOL MOU prosecutions will be open to the ones making the decisions that lead to the deaths of others including people in the corporate office, managers and supervisors in the field. OSH Act provides criminal sanctions for three types of conduct that impact worker safety: (1) willfully violating a specific standard, and thus causing the death of an employee; No criminal prosecutions can currently be brought for violations of the OSH Act General Duty Clause that result in death (2) giving advance notice of OSHA inspection activity (e.g., by calling inside a facility to give notice while holding inspectors outside, so that safety infractions can be remediated before discovery); and (3) falsification of documents filed or required to be maintained under the OSH Act.

11 OSHA State Plan States In the 22 state plan states, criminal prosecutions are brought more often because the state attorney generals can rely on state statutes with longer prison terms and higher criminal monetary penalties: involuntary manslaughter, negligent homicide, reckless endangerment assault and battery

12 OSHA Revised Penalties Debt reduction bill includes provision that will increase OSHA penalties by 80+% ($127,400) increased min. penalty for willful/repeat of $12,000 takes effect 8/1/2016!!!! OSHA also made changes in administrative procedures that could significantly increase the average penalty impacts what OSHA area directors can offer in settlement. The issuance of egregious violations is increasing, and this allows a penalty to be assessed for each occurrence of a problem or each worker affected (puts employer in SVEP). Area directors can offer an employer with 250 or fewer employees a 20 percent penalty reduction if it agrees to retain an independent safety and health consultant.

13 New Serious Injury Reporting Final Rule took effect 1/1/2015 report to local office during normal hours or call OSHA (6742) Rule retains the exemption for any employer with 10 or fewer employees, regardless of industry classification, from having to routinely keep records. Rule expands the list of severe work related injuries that all employers must report to OSHA. The revised rule retains the current requirement to report all work related fatalities within 8 hours Adds the requirement to report all work related in patient hospitalizations, amputations and loss of an eye within 24 hours to OSHA. Employers only have to report an inpatient hospitalization, amputation or loss of an eye that occurs within 24 hours of a work related incident

14 OSHA TRIAGE ON REPORTS In determining whether OSHA will send an inspection team, they ask: What was the injured EE doing just before injury; What tools, equipment or materials was he using; What directly caused the harm; Is the hazard that caused the harm still in the workplace; Could other persons potentially be harmed; What steps have been taken to remove the hazard; Has there been a similar incident or near miss?

15 OSHA TRIAGE ON REPORTS Priority inspections for I/I reports will be given to Category 1 reports: Fatalities or at least 2 persons hospitalized; Injury to worker under age 18; Employers with known history of multiple injuries (same/similar events in past 12 mo); Repeat offenders (those with history of egregious violations, willful and repeat violations, and failure to abate situations) Employers in SVEP Those employers covered by National Emphasis Program OSHA will also give priority to those workplaces with whistleblower complaints pending, those in VPP or SHARP, and those involving temporary workers or health issues

16 Electronic Recordkeeping OSHA Final Rule is at OMB awaiting clearance target release date 3/16 (will slip) OSHA proposal would require employers with 250+ workers to file electronic reports of all injuries and illnesses quarterly Smaller employers would need to submit data annually Would not relieve requirement to post logs in workplace Electronic data would be publicly available and searchable by employer name Includes modification to 29 CFR part to clarify an employee s right to report injury and illnesses to their employer without fear of retaliation.

17 Temporary Worker Safety Staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers training, hazard communication, PPE and recordkeeping/reporting. OSHA could hold both the host and temporary employers responsible for the violative condition(s) and that can include lack of adequate training regarding workplace hazards. OSHA recommends that temporary staffing agency and host employer set out their respective responsibilities in their contract. OSHA says: The key is communication between the agency and host Staffing agencies must inquire into conditions that their workers will face at assigned workplaces and ensure the work environment is safe Ignorance of hazards is no excuse Host employer must protect temps in same manner as regular employees

18 Enforcement Weighting A key metric historically used to evaluate the effectiveness of OSHA is total number of inspections conducted but didn t take into account the wide array of resource intensive inspections Old metrics have been replaced because penalized OSHA managers who ordered more complex inspections that used more CSHO time New criteria appear to encourage more inspections that will lead to GDC citations New system: Top weighting to significant cases ($100K+) 8 pts Process Safety Management inspections 7 pts Ergonomics inspections 5 pts Exposure to substance not regulated, workplace violence, and fatality/catastrophic event inspections 3 pts Combustible Dust inspections and those requiring personal sampling 2 pts Informal Complaint (hospital or medial referral) 1/9 pts Rapid Response Investigation follow up 1/9 pts

19 Greater Use of General Duty Clause Section 5(a)(1) of OSH Act permits issuance of citations to exposing employer for recognized hazards that could cause death or serious bodily injury Necessary elements to prove a violation of the general duty clause: The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed; The hazard was recognized; The hazard was causing or was likely to cause death or serious physical harm; and There was a feasible and useful method to correct the hazard. Actual exposure(s) must have occurred within the six months immediately preceding the issuance of the citation to serve as a basis for a violation, except where the employer has concealed the violative condition or misled OSHA.

20 General Duty Clause Recognition of a hazard can be established on the basis of employer recognition, industry recognition, or common sense recognition. Evidence of employer recognition may consist of written or oral statements made by management personnel during inspection. Employer awareness of a hazard may also be demonstrated by a review of company memorandums, safety work rules that specifically identify a hazard, operations manuals, standard operating procedures, and collective bargaining agreements. In addition, prior accidents/incidents, near misses known to the employer, injury and illness reports, or workers' compensation data, may also show employer knowledge of a hazard. Employee complaints or grievances and safety committee reports to supervisory personnel may establish recognition of the hazard, but the evidence should show that the complaints were not merely infrequent, off hand comments. An employer s own corrective actions may serve as the basis for establishing employer recognition of the hazard.

21 Whistleblower Prosecutions More emphasis on prosecuting whistleblower violations under Section 11(c) of OSH Act Incentive & disciplinary programs may be linked to discrimination for protected activity (reporting injury or unsafe conditions) Adverse action includes not only termination but: suspension, demotion, written warnings, change of shift or position, bad references To avoid Section 11(c) claims: When an employee raises a safety concern, take it seriously, investigate and document Never force anyone to work in equipment or areas that he/she believes is unsafe Never fire, demote or discipline workers for expressing safety concerns or cooperating with OSHA/MSHA during investigations (or for filing safety complaints with federal or state agencies) OSHA prosecutes in US District Court in 2015, multiple employers faced damages of $200,000+ in litigated cases OSHA has Whistleblower Advisory Committee, and new guidance was the subject of comment in 2016

22 Regulatory Activities: Crystalline Silica Final rule now at OMB awaiting approval top priority for OSHA Rule in development for more than a decade applies to all industry sectors Would lower current general industry PEL (100 ug/m3) and construction PEL (250 ug/m3) to 50 ug/m3 with 25 ug/m3 action limit Includes provisions for: Measuring worker exposures to silica; Limiting access to areas where workers could be exposed above the PEL; Use of dust controls; Use of respirators when necessary; Medical exams for highly exposed workers; Worker training; and Recordkeeping.

23 Regulatory Activities: PELs RFI RFI issued 10/10/14 comments closed 10/9/15 Issue: Many PELs outdated, many chemicals have no PELs at all, legal hurdles preclude group rulemaking OSHA is reviewing its approach to managing chemical exposures, and seeks input on new approaches (in light of legal requirements) Role of exposure modeling in feasibility analysis Potential role of REACH (EU approach), HazCom and control banding Sources of info about chemical hazards Non OEL approaches to chemical management

24 EO Chemical Security OSHA has significant role in the multi agency Chemical Facility Safety & Security Working Group aimed at improving chemical facility safety and security and reducing risks to workers and surrounding communities posed by hazardous chemicals at these facilities. Agencies include: DOL, DOJ, EPA, DHS, DOA OSHA will update the PSM standard soon (SBREFA starting 4/2016?), regulatory changes to improve ammonium nitrate safety, and developing targeted outreach and guidance products EPA has concurrent effort to amend its Risk Management Program requirements SBREFA already completed and rule sent to OMB

25 What About I2P2? Had been OSHA s Regulatory priority at outset of Obama Administration Now removed from regulatory agenda Update to 1989 SHMP guidelines was released for public comment: Written comment deadline closed 2/22/16 NACOSH heard public input at 3/4/16 meeting Public stakeholders meeting in DC on 3/10/16 Next steps??? SHMP requirements often included in corporate wide settlement agreements or as condition of informal settlements (often hidden) Shift to risk based approach to safety management Could this become binding in next Administration??? What role of ANSI Z10 and ISO 45001???

26 OSHA s Most Cited Standards FY Fall Protection Hazard Communication Scaffolding Respiratory Protection Lockout/Tagout Powered Industrial Trucks Ladders Electrical, Wiring Methods Machine Guarding Electrical, General Requirements

27 Questions???? ADELE L. ABRAMS, ESQ., CMSP EASTERN OFFICE WESTERN OFFICE

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