OSHA watch

Emergency temporary standard on COVID-19 vaccination, testing

(See first article - OSHA issues sweeping COVID-19 Vaccination and Testing Emergency Temporary Standard)

Fall protection is No. 1 on Top 10 violations for 11th consecutive year

For the 11th consecutive fiscal year, Fall Protection - General Requirements is OSHA's most frequently cited standard. Although several standards swapped positions in this preliminary list, the standards that make up the Top 10 remained unchanged from FY 2020. Hazard Communication, which ranked as the second most frequently cited standard a year ago, fell to No. 5 in FY 2021. Among other notable movements, Respiratory Protection rose one spot to No. 2, while Powered Industrial Trucks fell two spots, dropping to ninth from seventh.

The full list:

1. Fall Protection - General Requirements (1926.501): 5,295 violations
2. Respiratory Protection (1910.134): 2,527
3. Ladders (1926.1053): 2,026
4. Scaffolding (1926.451): 1,948
5. Hazard Communication (1910.1200): 1,947
6. Lockout/Tagout (1910.147): 1,698
7. Fall Protection - Training Requirements (1926.503): 1,666
8. Personal Protective and Lifesaving Equipment - Eye and Face Protection (1926.102):1,452
9. Powered Industrial Trucks (1910.178): 1,420
10. Machine Guarding (1910.212): 1,113

Finalized data, along with additional details and exclusive content will be published in December.

Senate confirms Doug Parker as agency head

In a 50-41 vote, the Senate made Mr. Parker the first confirmed leader of OSHA since January 2017. He most recently served as chief of California's Division of Occupational Safety and Health, previously served as deputy assistant secretary for policy in the MSHA under the Obama administration and was also part of the Biden transition team on worker health and safety issues. He is known for his advocacy of worker safety and he is expected to support aggressive and robust enforcement.

Rule-making process for heat-specific standard underway

Stakeholder input is now being sought in creating a rule to protect workers from extreme heat exposure in indoor and outdoor settings. According to an advance notice of proposed rulemaking (ANPRM) published in the Oct. 27 Federal Register, additional information is sought on topics such as heat stress thresholds, acclimatization planning, exposure monitoring, and the nature, types, and effectiveness of controls. The ANPRM includes more than 100 questions to help guide stakeholder comments, which are due by December 27.

Moving closer to more stringent injury and illness reporting requirements

A proposed rule that would restore two parts of the injury and illness recordkeeping regulations is under review by the OIRA. Once the proposal is published in the Federal Register, a comment period will begin.

It is likely the proposal will require that establishments with 250 or more employees provide electronic submissions of their injury and illness data from Forms 300 and 301. Currently only Form 300A, the yearly summary of injury and illness data, is required. While the Improve Tracking of Workplace Injuries and Illnesses final rule, issued in May 2016, required those employers to submit all three forms, the Trump Administration changed the rule in February 2019 to require only Form 300A. A notice of proposed rulemaking is scheduled to be published in December.

Other regulatory news

In a National Safety Council webinar, Deputy Assistant Secretary Jim Frederick reported the agency is working on a notice of proposed rulemaking for a standard on infectious diseases and added that a Small Business Regulatory Enforcement Fairness Act review of a standard on workplace violence could take place soon. Updated standards on hazard communication and mechanical power presses are also on the radar.

Regional Emphasis Program launched in Midwest

The regional office in Kansas City has established a Regional Emphasis Program (REP) targeting the Top 50 High-Hazard Health Industries. Inspections will focus on employers with documented employee exposure through previous inspections and companies in similar industries in Kansas, Missouri, and Nebraska. The REP will begin with informational mailings to employers, professional associations, local safety councils, apprenticeship programs, local hospitals, and occupational health clinics, and presentations to industry organizations and stakeholders.

New resources

• A new Code of Federal Regulations website provides easy access to a complete list of standards.
• A new fact sheet addresses COVID-19 whistleblowing. It details protections for employees who report workplace health and safety concerns related to COVID-19 and includes other relevant information for whistleblowers.
• The Technical Manual provides updated information on robot system safety in workplaces.
• A revised brochure addresses driver safety and urges employers to condemn texting while driving and stresses the importance of motor vehicle safety.

Whistleblower retaliation lawsuits among top three types COVID-19 litigation

According to Fisher Phillips' COVID-19 Employment Litigation Tracker as of Oct. 13, 2021, there were 3,717 pandemic-related lawsuits. Remote work/leave conflicts represented 28.1% (1,030), employment discrimination followed at 26.1% (956), and 23.5% or 860 were retaliation/whistleblower cases.

State OSHA
Cal/OSHA updates quarantine rules for unvaccinated workers

Without much fanfare, the FAQs for the COVID-19 emergency temporary standards (ETS) have been updated four times since September 21. The updates include:

• September 21: Updated to reflect new guidance from the Department of Public Health (CDPH) relating to quarantine recommendations. CDPH Isolation and Quarantine
• October 5, 2021: Added new Vaccines Q&A 9
• October 7, 2021: Revised Exclusion and pay Q&A 2
• October 27, 2021: Revised CDPH Isolation and Quarantine answer only

South Carolina, Arizona, and Utah warned that state OSH plans could be revoked

The Department of Labor sent letters to South Carolina, Arizona, and Utah warning that their approved status to operate their OSH State Plans could be revoked because they have not yet adopted the prior COVID-19 ETS for healthcare that federal OSHA issued in June. One stipulation for state plans is that safety standards are "at least as effective" as federal standards and state plans have only 30 days to adopt an ETS.

Recent fines and awards

California

• The Labor Commissioner's Office has again cited Bodega Latina dba El Super grocery stores in Southern California $1,164,500 for failing to provide or delaying supplemental paid sick leave or other benefits to 240 workers at 38 locations affected by COVID-19. An investigation found that some workers were forced to work while sick, others were told to apply for unemployment while quarantining or in isolation, while others waited months to be paid.

Florida

• Envirofocus Technologies LLC, operating as Gopher Resource LLC, of Tampa was cited with a willful violation for exposing workers to unsafe levels of airborne lead and failing to provide employees with adequate respirators, among several other violations. Proposed penalties total $319,876.

Illinois

• Generations at Neighbors LLC, operator of six rehabilitation and post-acute care facilities in Illinois and Indiana was cited for failing to implement critical elements of the National Emphasis Program for Coronavirus and the Emergency Temporary Standard for Health Care at its Byron facility. Violations were issued for failure to ensure proper use of respiratory protection, conduct thorough hazard assessments, maintain social distancing and physical barriers, and determine employees' vaccination status with proposed penalties of $38,620.
• For the sixth time in seven years, Emerald Inc., a Roselle construction contractor, was found to defy federal requirements to ensure the use of fall protection. Inspectors observed employees without fall protection while performing framing and carpentry work at a residential townhome development under construction in Elk Grove Village. The company faces one willful, five repeat, and two serious safety violations, and proposed penalties of $229,792.
• Chicago-based Tootsie Roll Industries LLC faces $136,532 in fines for failing to guard machines after a worker at one of its manufacturing plants suffered a partial finger amputation. Bypassed safety locks on a machine's access doors enabled a bag sealer to close on an employee's finger.

Indiana

• West Suburban Nursing and Rehabilitation Center LLC in Bloomington faces more than $83,000 in proposed penalties for failing to protect its workers from COVID-19. It was cited for not implementing a hazard assessment process to evaluate potential COVID-19 exposure, failing to track the vaccination status of employees, and failure to erect barriers or maintain control procedures to maintain six feet of distance between employees at entry points and nursing stations as well as not ensuring proper use of respirators or fit-testing all employees to ensure a proper seal. A worker died of the virus.

Missouri

• BCP Ingredients Inc., a Verona nutrition production plant, was cited for 24 serious safety, health violations after two complaints led federal safety and health inspectors to investigate allegations of worker exposure to multiple safety and health hazards, including toxic substances, combustible dust, and moving machinery parts. Proposed penalties are $300,759.

New York

• A Syracuse iron foundry, Frazer & Jones Co. Inc. has agreed to correct 60 cited hazards, implement enhanced corrective measures and pay $276,189 in penalties in a settlement agreement.

North Carolina

• PCL Civil Constructors Inc. was cited with two serious violations for failure to use engineering surveys or calculations to control a structure's stability and avoid unplanned collapses after a 42-year-old welder on the Bonner Bridge project in Rodanthe fell more than 50 feet to his death when the structure collapsed. Proposed penalties are $23,210.

Ohio

• An explosion and fire that killed a press operator and hospitalized eight other employees of Yenkin-Majestic Paint Corp. in Columbus led to two willful and 33 serious safety violations of process safety management, hazardous waste operations, emergency response procedures, and PPE and employee training requirements. The company faces over $700,000 in penalties and was placed in the Severe Violator Enforcement Program (SVEP).
• A Ravenna, aluminum parts manufacturer, General Aluminum Mfg. Co., with a history of safety violations, now faces $1,671,738 in penalties for 38 safety and health violations following an investigation into the death of a 43-year-old worker struck by a machine's barrier door. The company received four repeat, 18 willful and 16 serious safety and health violations and was placed in the SVEP.

Wisconsin

• Responding to a complaint alleging coronavirus hazards, federal workplace safety and health inspectors found Amston Trailer Sales, a Caledonia company, failed to protect workers from the COVID-19 dangers. The company violated its policies by allowing workers to congregate closely and without face coverings. Inspectors found that a 49-year-old dispatcher died from the virus and that 11 out of 38 employees of Amston Supply Inc. tested positive for COVID-19 from April 12 to May 18. Amston was cited for a serious general duty clause violation and $9,557 in penalties is proposed.

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