OSHA watch
Rulemaking for permanent COVID-19 Standard for Healthcare proposes major expansion of scope of coverage
The rulemaking record for a permanent COVID-19 Standard for Healthcare was reopened on March 22 and written comments are being accepted through April 22. A virtual public hearing is scheduled for April 27.
The Healthcare ETS expired in December 2021, although its recordkeeping obligations remain in effect. While aspects of the permanent standard are expected to be similar to the ETS, including requiring employers to maintain a safety plan, provide periodic training for employees on COVID-19 safety in the workplace, and clarify PPE expectations in the COVID-19 context, it considers removing the scope exemptions that were in the ETS. If the exemption is removed the standard would apply to ambulatory care, non-hospital settings where some healthcare services are provided, but that screen individuals for COVID-19 before entry and prevent COVID-19 infected individuals from entering. This means general industry manufacturers that have medical clinics onsite, dental and other doctors' offices, retail pharmacies, and so on could be subject to regulation under the standard. It's important that impacted employers participate in the rulemaking process.
Specifically, comments are requested on:
- Alignment with the Centers for Disease Control and Prevention's recommendations for healthcare infection control procedures
- Additional flexibility for employers
- Removal of scope exemptions
- Tailoring controls to address interactions with people with suspected or confirmed COVID-19
- Employer support for employees who wish to be vaccinated
- Limited coverage of construction activities in healthcare settings
- COVID-19 recordkeeping and reporting provision
- Triggering requirements based on community transmission levels
- The potential evolution of SARS-CoV-2 into a second novel strain
- The health effects and risk of COVID-19 since the ETS was issued
As with all other OSHA standards, if a standard is adopted the 22 states with OSHA-approved State Plans will be required to adopt a healthcare industry COVID-19 safety standard that is at least as protective as the federal standard.
New enforcement initiative targets health care facilities with COVID-19 patients
Effective March 9 and running through June 9, a three-month increase in inspections at hospitals and nursing care facilities that treat COVID-19 patients aims to verify employers' readiness to address current or future COVID-19 surges/variants. Follow-up inspections will be conducted at establishments that were previously issued citations and those that didn't have in-person inspections after receiving complaints. Together with the COVID-19 National Emphasis Program, these inspections are expected to comprise 15% of the enforcement activity.
Proposed rule to amend the occupational injury and illness recordkeeping regulation
The proposed rule would significantly expand public access to establishment-specific, case-specific injury and illness data and is similar to the 2016 rule from the Obama administration that was delayed and then rescinded under the Trump administration. The proposed rule would:
- Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their Forms 300, 301 and 300A once a year.
- Update the classification system used to determine the list of industries covered by the electronic submission requirement.
- Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A annually.
- Require establishments to include their company name when making electronic submissions.
- Require establishments with 20 or more employees in certain high-hazard industries to continue to electronically submit information from their Form 300A annual summary.
The requirement that all employers report any employee's work-related fatality within eight hours and in-patient hospitalization, amputation, or loss of an eye in 24 hours would continue.
Employers should determine if they will be subject to the proposed requirements and should evaluate each injury and illness that they report to ensure the standards require that they be recorded. The deadline for submitting comments electronically to the federal docket folder number OSHA-2021-0006 is May 31, 2022.
Region 7 office launches Noise Emphasis Program
Region 7 office in Kansas City, which includes Iowa, Kansas, Missouri, and Nebraska, has launched an inspection and enforcement program for occupational noise exposures in the Midwest. Site selection for inspections under the REP will involve consulting lists of general and construction industries targeted by the program and state workers' compensation data for noise-induced hearing loss.
Compliance safety and health officers (CSHOs) will begin inspections by determining whether there are any temporary workers at a facility or site. They will also review employers' noise exposure monitoring program, hearing conservation program, and 300 injury and illness logs for any standard threshold hearing shifts or other health hazards.
Budget increases by $20 million
The final fiscal year 2022 budget (Oct. 1, 2021 - Sept. 30, 2022) is $612 million, which is a $20 million increase from FY2021. A sizable portion of the $20 million increase is slated for enforcement (nearly $7.3 million), while compliance assistance efforts will receive nearly $3.7 million more than in FY 2021.
New inspection tracker tool
The Workplace Safety and Catastrophe Management team at Fisher Phillips, a national labor and employment firm, has created an Inspection Tracker map that shows the location, industry, and company size of inspections that have taken place since the first of the year. While the data is limited, the firm notes that State Plans are being particularly aggressive in enforcement efforts, employers of any size can be targeted, but inspections are disproportionately directed at medium and large employers, construction and manufacturing are the two top industries and retail was a surprising third.
Standard interpretation: Determining if injuries or illnesses are work-related when involved in a motor vehicle accident
For purposes of Part 1904, the longstanding position is that injuries and illnesses that occur during an employee's normal commute from home to work, and from work to home, are not work-related and therefore not recordable. However, in the scenario presented, the employee had completed his normal commute to and from work for the day and was directed back to the workplace by the employer to assist with a work-related emergency. Since the employee was required to return to the workplace outside of his normal commute, the employee was engaged in a work activity "in the interest of the employer," and was traveling as a "condition of employment." Accordingly, the resulting injury and hospitalization is work-related and must be recorded on the OSHA 300 log.
State OSHA
Oregon OSHA
- Removed the indoor masking requirements for most workplace settings
- Mask mandate in hospitals, dental offices, and other healthcare settings, as well as overall COVID-19 rules for healthcare settings, will remain in effect
- Employers must allow workers to voluntarily use facial coverings and provide facial coverings at no cost to workers
Virginia (VOSH)
Nearly two years after enacting the first-in-the-nation permanent COVID-19 workplace safety and health standard, the Virginia Safety and Health Codes Board voted to rescind its COVID-19 standard, effective March 23, 2022. VOSH will continue to inspect and cite employers for COVID-19-related safety concerns under existing regulations and has issued Guidance for Employers to Mitigate the Risk of COVID-19 to Workers, which encourages employers to continue taking certain steps to protect employees from the virus.
Recent fines and awards
California
- A business aviation provider, Pegasus Elite Aviation Inc. in Calabasas, was ordered to pay $958,000 in back wages and associated costs to a former employee who the company retaliated against for reporting flight safety issues. The company also filed falsified reports to the FAA and other employers.
- A 34-year-old worker's fatal fall while working at La Jolla Zip Zoom Ziplines, a Pauma Valley attraction, led to four serious safety violations and proposed penalties of $24,861. The company was cited for failing to install a guardrail, safety net, or personal fall arrest system, failing to properly train employees, failure to identify hazards at the workplace, and failure to report a hospitalization in 24 hours.
Florida
- Deering Custom Cabinets LLC of Pensacola was cited in 2021 for exposing workers to fire risks. In a follow-up inspection, the company was cited with three failure-to-abate violations and faces $157,977 in proposed penalties. They did not have automatic sprinklers in place in a spray booth. exposed workers to fire and explosive hazards by allowing them to use unapproved electrical equipment near flammable stains and paints, and failed to fit test and train workers using respirators and did not ensure proper storage of the devices.
Massachusetts
- Berry Global Inc., a plastic packaging manufacturer, faces $369,815 in penalties following a severe burn injury at its Sterling facility. The company did not comply with the lockout/tagout standard nor provide personal protective equipment.
- A bankrupt waste facility in Pittsfield, Community Eco Power LLC, faces $26,107 in penalties for exposing workers to hazardous, chemical-laden smoke. The company is contesting the fine.
New Jersey
- A Palisades Park contractor was found personally liable for $2 million in penalties by a federal administrative law judge. Five inspections at four Bergen County worksites led to eight willful, 10 repeat, and 12 serious violations for hazards that included failure to use fall, head and eye protection, unsafe use of stepladders, scaffolding, housekeeping, and fire safety deficiencies, lack of stair rails, and lack of forklift training. As a result, a total of $2,004,225 in penalties was proposed against BB Frame, and Mr. Quevedo-Garcia individually, who contested the citations, prompting the department to file complaints with the Occupational Safety and Health Review Commission.
- An inspection of My Auto Store in Camden, operated by automobile dismantling company The Auto Store LLC, was initiated after a vehicle lift crushed a worker's hand. The company received citations for 33 safety violations and a proposed penalty of $1,260,275, including failure to develop and use lockout/tagout and machine guarding procedures, failure to protect against fires along the conveyor line, failure to keep an emergency egress clear, failure to provide PPE, and more.
New York
- A Long Island-based contractor, DME Construction Associates Inc., was issued nine citations for serious safety violations and faces penalties of $1,201,031 following a fatal workplace accident. The employee fell 18 feet through an unprotected skylight. The company had been cited seven times previously for fall-related hazards.
- An ophthalmologist and his practice, Kwiat Eye and Laser Surgery PLLC, in Amsterdam has been sued for retaliation. An employee who raised concerns about the practice's failure to implement state-mandated protocols to protect employees from COVID-19 and filed complaints with state health officials was fired.
North Carolina
- Two 19-year-old apprentices of Pike Electric LLC in Mount Airy were fatally electrocuted while working on a 7,200-volt electric distribution line to restore power after a severe summer storm. The investigation identified three serious violations and proposed penalties are $43,506.
- An investigation of an incident resulting in an arm amputation at a USPS mail distribution center in Greensboro found that the accident was triggered by a machine that had a safety guard removed. USPS was cited for two repeat and two serious safety violations, including failure to ensure that safety guards were in place, allowing conveyor guards to be routinely removed, failure to train staff on lockout/tagout safety measures, and allowing unqualified workers to perform tests on live electrical equipment. Proposed fines are $170,918.
Pennsylvania
- Northumberland-based Strong Industries Inc., a hot tub manufacturer, was cited for continuing to expose workers to methylene bisphenyl diisocyante, a dangerous chemical. Strong faces a total of $98,905 in penalties.
- An inspection initiated by a referral from the borough's code enforcement office found that PGA Inc., a Freeland-based plastic recycler, exposed workers to combustible dust and other workplace safety and health hazards. The company faces one willful, seven serious, and one other-than-serious safety violations and proposed penalties of $88,423.
Rhode Island
- Greenville Ready Mix Concrete Products Inc. of Smithfield faces $43,506 in penalties after a worker suffered fatal head injuries while repairing a cement truck. The company received six citations, including failure to establish a lockout/tagout program to prevent the cement truck drum from operating while employees serviced or maintained it, failure to train employees in lockout/tagout procedures, and not conducting periodic inspections to ensure proper procedures were followed.
Tennessee
- The Tennessee Valley Authority Corp.'s Bull Run Fossil Plant in Clinton was inspected after a 29-year-old industrial insulation installer was electrocuted after falling five feet through the top of a metal compartment and contacting energized electrical equipment. Williams Specialty was cited for one willful and two serious violations with a proposed penalty of $152,900 and GUBMK Constructors was cited for one serious violation with a proposed penalty of $14,502. TVA was given a serious notice of unsafe or unhealthy working conditions.
West Virginia
- Continental Brick Co. was cited after an investigation found the employer exposed workers to respirable crystalline silica at the company's brick manufacturing facility in Martinsburg. The company failed to provide and require employees to wear respirators when working in areas where there was overexposure to respirable crystalline silica, did not implement adequate engineering and work practice controls, conduct scheduled monitoring, establish regulated decontamination areas or make a medical surveillance program available for employees exposed at or above the action level. Proposed penalties are $131,972.
Wisconsin
- An Appleton-based contractor, Apple Roofing Solutions LLC, was again cited for exposing workers to deadly fall hazards after inspectors observed six roofers atop a two-story Algoma duplex. Proposed penalties total $49,722 for one willful, one repeat, and one serious violation.