OSHA watch

Another COVID-19 Emergency Temporary Standard on the horizon

(See our first article, It's time to prepare for workplace vaccine mandates)

Rulemaking and emphasis program in the works to prevent heat-related hazards

Implementing a National Emphasis Program on heat-related hazards (both indoors and outdoors) and launching a rulemaking process in October to develop a workplace heat standard was announced in a Sept. 20 press release. Applicable to general industry as well as the construction, agriculture, and maritime industries, the initiative will prioritize heat-related inspections and interventions when the heat index exceeds 80° F. In addition, a National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group will be formed to provide a better understanding of challenges and to identify and share best practices to protect workers.

Interpretive rule on anti-retaliation now allows only 'but-for' causation

The final interpretive rule that changes a rule interpreting the anti-retaliation provision of the Occupational Safety and Health Act of 1970 clarifies the causal connection "between protected activity and adverse action is 'but-for' causation." Previously, section 1977.6(b) in the OSH Act gave two ways to establish a causal connection between whistleblowing or other protected activities and an "adverse action" such as a dismissal. One was the "but-for" causation, and the other was the "protected activity was a substantial reason for the adverse action."

Safety alert issued on diving work performed near drains, tunnels, pipes, and valves

Deaths of divers, including five which occurred at power generation facilities, prompted the issue of the safety alert. It notes that divers can suffer fatal injuries when differential water pressure, commonly known as Delta P, creates forces quick and strong enough to entrap them.

Regional Emphasis Program launched for New England's tree and landscaping operations

The Regional Emphasis Program (REP) will begin with outreach to employers, workers, and stakeholder groups by each area office in New England and enforcement activities will begin in November 2021. The REP allows programmed inspections of tree, landscape, and site preparation worksites as well as impromptu inspections if inspectors observe hazardous conditions while traveling past worksites in the course of their duties.

New fact sheets on filtering facepiece respirators issued by NIOSH

Cal/OSHA enforcement authority expanded

Cal/OSHA has two new categories of workplace safety violations "enterprise-wide" and "egregious," subject to the same penalties as willful or repeated violations.

A new law, SB 606, which is expected to go into effect Jan. 1, 2022, creates a rebuttable presumption that employers with multiple worksites have made enterprise-wide workplace safety violations if it has a written policy or procedure that violates the agency's rules and standards or there is evidence of a pattern or practice of the same violation committed by that employer involving more than one of the employer's worksite. The other sites do not have an inspection to receive citations.

Also, an "egregious" violation can be issued if one of seven criteria is met. These include:

The employer "intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation."
The violations "resulted in worker fatalities, a worksite catastrophe, or many of injuries or illnesses."
The violations resulted in persistently high rates of worker injuries or illnesses.
The employer has an extensive history of prior violations under section 6317 of the Labor Code.
The employer has intentionally disregarded their health and safety responsibilities.
The employer's conduct, taken as a whole, amounts to clear bad faith in the performance of their duties to maintain a safe workplace.
The employer has committed many violations undermining significantly the effectiveness of any safety and health program that may be in place.

Further, the bill, with some exceptions, will "require each instance of an employee exposed to that violation to be considered a separate violation for purposes of the issuance of fines and penalties." It also grants new subpoena power to the agency.

The changes are substantial and employers with multiple worksites should ensure that their written policies and procedures are up to date. All worksites should comply with all Cal/OSHA standards including an Injury and Illness Prevention Program (IIPP).

Virginia OSH issues third iteration of emergency COVID-19 regulation

Effective September 8, the Final Permanent Standard, as amended, includes some significant changes. It removed the exposure risk level determinations of very high, high, medium, and lower and enacted specific requirements applicable to all employers along with more stringent requirements for health care or health care support services and "higher-risk workplaces."

By Oct. 8, any health care or health care support employer, as well as any employers with higher-risk workplaces with 11 or more employees, must have an infectious disease preparedness and response plan. When counting the employees, the employer may exclude fully vaccinated employees. Training requirements, which become effective Nov. 7, on the hazards and characteristics of COVID-19 apply to employees working in health care and health care support settings, and higher-risk workplaces.

The revisions impose additional requirements for employees who have not been fully vaccinated but permits an employer to rely on an employee's representation of being fully vaccinated, without providing proof of vaccination.

Oregon OSHA launches a Spanish-language version of video training course on fall protection

The free online video training course on fall protection for the construction industry is now available in Spanish.

Recent fines and awards

Florida

Framing contractor, Domingos 54 Construction Inc of Parrish, faces initial* penalties of $127,876 for one willful and four repeat violations related to fall protection.

Georgia

Less than two months after six workers at the plant died due to the uncontrolled release of liquid nitrogen from a faulty freezer system, Foundation Food Group Inc. of Gainesville is facing a second fine of $154,000 for subjecting employees to hazards from the release of anhydrous ammonia, failing to install a system that protected workers, and other violations.
CSX Transportation Inc. was ordered to pay more than $667,000 and reinstate two employees after an investigation finds whistleblower retaliatory actions. The two railroad workers at a railyard in Waycross encountered and reported a blue flag that signaled their train could not move safely. They were pulled from their job and later fired. CSX was ordered to pay the employees $667,740 plus attorney's fees and restore both workers' seniority and benefits.
Legendary Meats, LLC of Marietta has reached an informal settlement to pay $49,504 for violations relating to machine guarding and lockout/tagout.

Illinois

Home Depot of Champaign faces initial* penalties of $58,707 for failing to protect employees from falling objects and train employees.

Massachusetts

The Occupational Safety and Health Review Commission (OSHRC) has partly vacated citations against a Plainville crane and rigging operator, North American Crane & Rigging LLC (NACR), over radius hazards. It noted the Secretary of Labor "failed to establish NACR's employees had actual access to the zone of danger in question, or that access was reasonably foreseeable based on the employees' assigned work activities, personal comfort activities, or ingress/egress routes."

New York

3rd Track Constructors faces an initial* penalty of $136, 532 for a willful violation of the Power Line Safety Standard.
Paraco Gas Corp. of Bay Shore faces initial *penalties of $107,277 for serious violations relating to process management safety.

North Carolina

Bassett Furniture Industries of Newton faces initial* penalties of $77,000 for one willful and one serious violation related to fall protection.

Ohio

General Aluminum Mfg. Company, a Ravenna aluminum parts manufacturer 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 on March 30, 2021. It's alleged employees were allowed to bypass guarding mechanisms designed to protect employees from the barrier door closing on them and that a malfunction in the door's optic control existed before the deadly incident. The worker was loading a part into the machine when the barrier door closed on his head.
A Canton automotive steel mill, Republic Steel, was placed in the Severe Violator Enforcement Program and faces penalties of $220,399. Responding to a complaint of unsafe working conditions, federal safety inspectors found the company did not install adequate machine guarding, implement lockout/tagout measures, or train workers on safety procedures, all of which exposed workers to amputation hazards.
A contractor, Neil Weaver, operating as Grand Valley Carpentry LLC, has been cited six times in five years for failing to use fall protection, although operating under a different company name. He faces two willful violations and proposed penalties of $253,556.

*Inspection has not been closed

For additional information.