OSHA Regulatory Title & Legislative Goes Here Update

Transcription

1 OSHA Regulatory Title & Legislative Goes Here Update FALL OCCUPATIONAL SAFETY AND HEALTH COMMITTEE MEETING SEPTEMBER 29, 2015 PRESENTED BY Charles Kelly EEI (202) Melissa Bailey Ogletree Deakins (202)

2 Recordkeeping

3 Reporting Effective 1/1/2015 Must now be reported to OSHA within 24 hours Hospitalization of one or more employees Amputations Loss of an eye or eyes Must be reported to OSHA within 8 hours Fatalities

4 What Is OSHA Doing With The Information?

5 What Is OSHA Doing With The Information? OSHA conducting more inspections Severity/type of injury is a factor Function of how busy the Area Office is? More interaction between facility/site managers and OSHA is management trained and ready? Easier for OSHA to track kinds of incidents employers are having will this lead to more willful violations?

6 Tips For Employers OSHA sending requests for additional information in lieu of inspecting Recommendations Do not provide OSHA with root cause analysis Do not complete non-mandatory OSHA form Provide OSHA with brief description of the accident Provide enough information to satisfy OSHA, but not so much that they want to inspect

7 Oh, and by the way

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10 Proposed Regulation Employers with 250+ Quarterly 300 & 301s Annual - 300A Employers with 20+ in certain industries Annual 300A

11 Current Regulation Submit 300 logs, 300A, 301 reports to OSHA when requested

12 Which Certain Industries?

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14 Publication Of Electronic Data Form 300A: In its entirety 300 Log: In its entirety except employee names Form 301: All information on the right-hand side

15 What Will The Public Do With The Information? Unions: Use to organize and in bargaining We represent the NJ plant and its rates are far below the TX plant we are trying to organize you should vote us in Based on rates at various plants, more emphasis on safety is required at certain plants Plaintiffs attorneys: Use to establish gross negligence to overcome workers compensation bar

16 What Will OSHA Do With The Information? Prioritize to perform more inspections at worksites with high incident rates or certain types of injuries Establish willful violation based on reports of similar accidents occurring at multiple locations

17 September 2015? OSHA says September 2015 highly unlikely Does OSHA have the IT ability to accept this data? Employers/state plans will need time to adapt to new electronic requirements Will it be challenged?

18 AKM/Volks Constructors

19 AKM/Volks Constructors May cite 6 months from discovering Continuing duty to maintain records for 5- year retention period Citation not timely Injury/Illness occurred more than 6 months ago

20 AKM/Volks Constructors No citation may be issued under this section after the expiration of 6 months following the occurrence of any violation Section 9(c) of OSH Act

21 AKM/Volks Constructors

22 AKM/Volks Constructors ALJ Upheld citation OSHA s position consistent with Commission precedent in Johnson Controls Recordkeeping violations may be cited 6 months from the time discovered, or should have been discovered, by OSHA during 5- year retention period

23 AKM/Volks Constructors Upheld citation Continuing violation: Employers required to maintain accurate injury/illness records during 5-year retention period Commission precedent still valid

24 AKM/Volks Constructors Citations untimely More than 6 months had passed since recordable injuries/illnesses should have been entered on the 300 Log Johnson Controls not applicable

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26 Proposed Rule To clarify that employers have a continuing obligation to make & maintain accurate injury/illness records

27 Proposed Rule Excerpt from proposed rule Failure to meet the 7-day deadline does not extinguish your continuing obligation to make a record of the injury or illness and to maintain accurate records of all recordable injuries and illnesses This obligation continues throughout the entire record retention period

28 Proposed Rule The proposal reads like an appellate brief Rather than setting out the justification, costs and benefits of the proposal, OSHA makes the arguments it should have made to the appellate/supreme Court Comment period extended to October 28, 2015 Will it be challenged?

29 Joint Employer

30 What Is The Issue? Joint employer liability is a key enforcement initiative of a number of federal agencies: National Labor Relations Board Equal Employment Opportunity Commission OSHA?

31 NLRB Browning-Ferris NLRB overturned longstanding precedent regarding joint employer under the NLRA Held that a host employer need not exercise actual, direct, or immediate control over another entity s employees to be considered a joint employer Will look at unique circumstances on a case-by-case basis to assess any indirect control

32 OSHA & Joint Employers Internal OSHA memorandum regarding joint liability of franchisors & franchisees for OSHA violations leaked Joint employer standard may apply where the corporate entity exercises direct or indirect control over working conditions Information used to determine joint employer status include Franchise agreement Corporate procedures provided to franchise Corporate control over safety and health practices

33 OSHA & Joint Employers Memorandum only addresses franchisorfranchisee relationships Senator Alexander (R-TN): Why is OSHA even interested in this? What does joint employer liability have to do with safety?

34 OSHA Temporary Worker Initiative Host employers and staffing agencies are jointly responsible for maintaining a safe work environment for temporary workers Jointly responsible for: Safety training; Recordkeeping; PPE Whistleblower Protection Rights

35 How will joint employer apply to electric utility companies and their contractors?

36 Types Of Contractors Generating facilities (regular operations or turnaround) Work on power lines (e.g., construction & line clearance tree trimmers) Temporary employees (e.g., call center, outage)

37 Industry Implication OSHA s application of NLRB joint employer test limited to franchises? For electric utility industry, OSHA likely to rely on Multi-Employer Citation Policy Host Contractor requirements set forth at Section and Part 1926 Subpart V

38 Proposed Subpart D

39 Proposed Subpart D Employers may choose fall protection for unprotected sides: Guardrail system Designated area Safety net system Travel restraint system Personal fall arrest system Exception for working side of some platforms where guardrails not feasible

40 Proposed Subpart D Employers may also choose fall protection for floor holes: Covers Guardrail system Travel restraint system Personal fall protection system

41 August 2015

42 Additional OSHA Updates

43 Laundering FR & Arc-Rated Clothing LOI dated June 1, 2015 Employer may require employees to wash protective clothing at home If employees wash protective clothing at home, the employer must provide employee with training on how to wash clothing properly Section (a) &

44 Estimated Incident Heat Exposure LOI dated July 13, 2015 Employers may rely on incident heat exposure calculations in Table of 2012 NESC except calculations associated with notes 7 & 8 to the table Not enough information to determine the reasonableness of calculations associated with notes 7 & 8 Section (l)(8)(ii)

45 Kinesiology Tape LOI dated July 6, 2015 For recordkeeping purposes, the application of kinesiology tape is considered first aid, not medical treatment Use of kinesiology tape for work-related injury does not make injury recordable Reverses previous LOI dated December 12, 2014 that use of kinesiology tape was medical treatment

46 Section /Subpart V IEEE 516 Update January 31, 2016: Final MADs completed OSHA will extend the deadline if peer-reviewed guidance is not available by May 1, 2015 Extension will be 9 months from when IEEE 516 is available, but when will that be? Status of offer to OSHA to provide training to CSHOs

47 Section /Subpart V CPL for /Subpart V has OSHA started it? What issues are utilities/contractors seeing in the field? Enforcement activity Implementation of host/contractor and other provisions

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49 OSHA Regulatory Title & Legislative Goes Here Update FALL OCCUPATIONAL SAFETY AND HEALTH COMMITTEE MEETING SEPTEMBER 29, 2015 PRESENTED BY Charles Kelly EEI (202) Melissa Bailey Ogletree Deakins (202)