OSHA watch

Enforcement of anti-retaliation provisions of injury and illness tracking rule delayed until December 1

The U.S. District Court for the Northern District of Texas requested the delay to allow additional time to consider a motion challenging the new provisions. The anti-retaliation provisions were previously delayed until Nov. 10 to allow time for outreach to the regulated community. Under the rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.

Memorandum interpreting the new anti-retaliation provisions includes guidance on disciplinary, incentive and drug testing programs

A memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule, "Improve Tracking of Workplace of Injuries and Illnesses," provides examples of how disciplinary, drug testing, and incentive programs may be viewed by regulators. While programs should never deter employees from reporting work-related injuries or illnesses, the rule does not ban programs that are appropriate.

For example, pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report would violate the rule. On the other hand, disciplining an employee for bypassing a guard, contrary to the employer's safety policies, even if the employee is injured would not violate the rule.

The memorandum also makes it clear that "drug testing conducted under a state worker's compensation law or other state or federal law" does not violate the new rule. However, "the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness."

Incentives are addressed with this example: An employer promises to raffle off a $500 gift card at the end of each month in which no employee sustains an injury that requires the employee to miss work. But, if the employer cancels the raffle one month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate the rule. Alternately, conditioning a benefit on compliance with legitimate safety rules or participation in safety-related activities would be allowed.

Safety and Health Program Management Guidelines updated for first time in 30 years

Designed to help employers establish a methodical approach to improving safety at their workplaces, the core elements of the updated Safety and Health Program Management Guidelines include:

• Management Leadership
• Worker Participation
• Hazard Identification and Assessment
• Hazard Prevention and Control
• Education and Training
• Program Evaluation and Improvement
• Communication and Coordination for Host Employers, Contractors and Staffing Agencies

D.C. Circuit vacates memorandum narrowing the retail exemption from the PSM standard

A July 2015 memorandum that required coverage under the onerous PSM standard for many previously exempt fertilizer and farm supply retailers has been vacated by the D.C. Circuit court. The petitioners' challenge argued that the memorandum was actually a standard, not an interpretation, and that, in turn, was required to follow rulemaking procedures, including notice-and-comment requirements, and the court agreed. This is unlikely to go away, but stakeholders will have the opportunity to be heard through notice-and-comment procedures.

Proposed rule changes

Improvements to respiratory protection standard

A Notice of Proposed Rulemaking was issued to add two quantitative fit-testing protocols to the agency's Respiratory Protection Standard. Comments are due by Dec.6.

Rules proposed to streamline 18 standards

Eighteen changes to the agency's recordkeeping, general industry, maritime and construction standards are proposed to revise provisions in standards that may be confusing, outdated, or unnecessary. The Standard, New England's Insurance Weekly, has published a good summary. Comments are due by Dec. 5.

New fact sheets focus on analyses

Root causes explains why and how to perform a root cause analysis after an incident or near miss occurs at a facility.

The Use of Metrics in Process Safety Management Facilities provides employers with a list of metrics tracked by facilities in the Voluntary Protection Programs that handle highly hazardous chemicals.

New video on how to file a complaint

A one-minute video, available in English and Spanish, is designed to inform workers exposed to jobsite hazards of their right to file a complaint.

English

Spanish

Case study addressing the safety obligations of staffing companies and host employers to temporary workers

The National Safety Council and the American Staffing Association have jointly published a case study based on past citations issued by OSHA in connection with temporary workers' on-the-job injuries.

Recent fines and awards

California

• California OSHA fined La Pafe Inc. (Le Chef Bakery) in Montebello $196,450 after a worker suffered fractures and lacerations to his hand and fingers. The company failed to ensure that the machine could not be activated during cleaning and servicing.

Florida

• Carlson Enterprises, a roofing contractor, faces fines of more than $212,000 for exposing workers to dangerous fall, other hazards at Jacksonville work site.
• On the first day of his job, an 18-year-old roofer fell approximately 14 feet to the ground at a construction site in Bay Harbor Island and was partially impaled through his upper thigh and buttocks when he landed on a metal fence post. Fast Carpentry I Inc. was cited for a failure to provide fall protection and training. Proposed fines are $152, 145.
• Inspected under the Regional Emphasis Program (REP) on Falls in Construction, Panama City Framing LLC, a framing contractor, faces fines of nearly $360,000 for exposing workers to falls and other safety hazards. The employer has been cited four times since 2012.
• Monster Tree Service of Fort Lauderdale faces penalties of $133,617 in a worker's fatal electrocution, when an aluminum pole saw made contact with overhead power lines.

Georgia

• Columbia Recycling Corp. of Dalton faces nearly $318,000 in fines for repeated and serious violations related to hearing conservation, chemical storage, energy controls and other hazards following an inspection initiated by a complaint.
• Home Live Roofing LLC of Marietta was cited for the sixth time for exposing workers to fall hazards. Inspected as a result of a complaint, the company faces $101,121 in fines.
• Paper product manufacturer, AJM Packaging Corp., was cited for lacking safety procedures after a worker suffered a partial amputation to his right hand's middle finger. Proposed fines are $68,000.

Illinois

• Og Plumbing, a Chicago plumbing contractor, was placed in the Severe Violator Enforcement Program (SVEP) after three job sites were found in violation of standards related to trenching in one month. Proposed penalties are $275,728.
• Viscofan USA Inc., a Global meat-casing manufacturer, of Danville, was cited for exposing workers to slip, trip and fall hazards and failure to properly mount, locate and identify portable fire extinguishers. Proposed penalties are $86,225.

Indiana

• Townsend Tree Service Company LLC of Muncie was cited after a 23-year-old worker succumbs to a fatal heat stroke in 110-degree weather. Proposed penalties are $12,471.

Massachusetts

• ET&L Construction Corp. of Stow faces $119,597 in fines for willful and serious safety violations related to a trench collapse.
• Stavis Seafoods Inc., a Boston seafood processor, was cited for 20 serious violations related to an ammonia leak in which an employee died. Proposed fines are $173,168.
• Crown Equipment, a powered industrial truck sales and repair facility based in Woburn, was cited for failing to provide adequate training and safeguards to protect employees while they serviced rim wheels. An employee sustained serious head injuries when a tire exploded. Proposed penalties are $62,355.

Mississippi

• Hankins Lumber Co. of Grenada faces $80,937 in penalties after a saw operator was killed when an unguarded sprocket on a rotating shaft entangled his clothes.

New York

• A Syracuse roofing contractor, The Roofing Guys Inc., with a history of safety violations, faces $96,000 in fines for inadequate fall protection.

Pennsylvania

• Quick Carpentry Inc. of Philadelphia was fined $105,000 for exposing workers to fall hazards at a South Jersey construction site. It was inspected under the local emphasis program focused on falls in construction.
• York Building Products, a Middletown masonry company, agrees to pay $135,000 in back wages and damages to a plant manager whom it terminated less than two weeks after hiring him. The manager had voiced multiple complaints about safety and health conditions, including excessive respirable dust and exposure to noxious chemicals.

Wisconsin

• An Arpin contractor, Earth, Inc. faces penalties of $93,532 for allowing its employees to work in a trench without cave-in protection.
• After five employees of A&A Environmental Services Inc. became ill from carbon monoxide exposure renovating a New Glarus nursing home, inspectors found that the workers were also exposed to asbestos hazards. Proposed fines are $243,716.
• Dedicated Logistics Inc. of Hudson faces $109,211 in fines for exposing workers to powered industrial vehicle and electrical hazards.
• R. Stresau Laboratory Inc., an explosive component manufacturer, faces nearly $143,000 in fines for exposing workers to lead and other hazards at its Spooner facility.

Detailed descriptions of the citations above and other OSHA citations can be found here.