OSHA watch
Regional emphasis program for warehousing operations in Mid-Atlantic states
A five-year Regional Emphasis Program (REP) has been launched in Pennsylvania, Delaware, Maryland, Virginia, West Virginia, and the District of Columbia focused on the warehouse, storage, and distribution industries. An outreach program is underway and around the first week of November targeted enforcement will begin focusing on the use of powered industrial trucks, such as forklifts, lockout/tagout procedures (LOTO), machine guarding, means of egress, and fire suppression. The REP spells out the NAICS codes of the worksites it will target. Inspections will not include marine terminals or shipyards.
REPs are considered programmed inspections and employers can be randomly selected simply based on their NAICS code, even if they have a spotless safety record. The scope of the inspection will be quite broad as described in Section XI of the program directive. Also, emphasis program inspections are typically combined with other inspections to broaden the scope of the inspection.
Covered employers can proactively prepare by examining the most frequently cited standards for their NAICS, evaluating the use and training of temporary workers, reviewing rack inspection programs, documenting finding and fixing damaged sections, assessing compliance with LOTO, and reviewing 300 logs.
Manual for handling retaliation complaints under whistleblower statutes updated
The Whistleblower Investigations Manual update supersedes the January 2016 version and is the first complete overhaul since 2011.
Key changes in the manual include:
- Incorporating past policy memoranda and procedures piloted by OSHA field offices
- Clarifying and streamlining procedures that lacked sufficient guidance or were unclear in the 2016 version
- Statute-specific chapters were removed and converted into statute-specific desk aids
- Restructuring the manual such that Chapter 2 now collects and explains the legal concepts and principles that guide whistleblower investigations. In previous versions, these concepts were introduced throughout the manual
No updated COVID guidance yet
After the CDC updated its COVID-19 guidance in August, shifting the burden to individuals to understand their risk and away from employers, schools, and other organizations, many expected clarification from OSHA on general industry guidelines, but none has been issued. Employers should incorporate the new CDC guidance into their workplace policies and ensure that their employees are complying with the updated guidance, as well as monitor ventilation issues in buildings. It's best to monitor the OSHA website for updates as well as CDC webpages on Workplaces & Businesses, which the CDC is reviewing to align with the updated guidance. It's important to note the COVID-19 National Emphasis Program is still in effect, essentially for healthcare employers now.
Hurricane preparedness
While the hurricane season has been unexpectedly quiet, it hasn't reached its zenith and a spike in activity is still possible cautions the US National Atmospheric and Oceanic Administration (NOAA). Employers should act now to implement or update their emergency action plans so that they can protect their employees, minimize confusion during an emergency, and get back to work as quickly as possible following any disaster-related shutdowns. The hurricane preparedness webpage provides information on protecting workers. Performing regular practice runs and updating the plan based on lessons learned is a best practice.
Comment period extended on proposed rule on occupational exposure to lead
In response to multiple stakeholder requests, the comment period on a proposed rule that would revise the agency's standards on occupational exposure to lead in general industry and construction has been extended to October 28, 2022.
Monkeypox guidance expected
While no guidance has been yet issued on the Monkeypox virus, it is expected soon. Employers are reminded that the General Duty Clause requires employers to provide a workplace free from recognized serious health hazards. Employers should consider providing time off for employees to get tested, flexible telecommuting policies, following CDC guidelines for isolation, and educating their workforce on transmissibility of monkeypox. If there is a known positive case in the workplace, adding extra cleaning protocols, requiring employees who believe they are symptomatic to isolate, and encouraging social distancing should be considered.
Court blocks bid to reinstate COVID-19 standard for health workers
Several major unions representing nurses, teachers, and other workers, petitioned the court to require that OSHA quickly codify a permanent standard on occupational exposure to COVID-19. The U.S. Court of Appeals for the D.C. Circuit recently ruled it lacked the authority to force the agency to make certain rules, leaving discretion up to OSHA.
Comment period on revoking Arizona State Plan reopened
The comment period has been reopened for the proposal to reconsider and revoke the final approval of Arizona's State Plan for Occupational Safety and Health and the public hearing tentatively scheduled for Aug. 16 was postponed. Comments should be submitted by October 14, 2022.
Massachusetts State Plan a reality
Effective Aug. 18, the Massachusetts Department of Labor Standards began administering a State Plan that will cover more than 430,000 state and local government employees. Private-sector workers and federal government employees in the state will remain covered under federal OSHA. Massachusetts is now one of seven states or territories to administer plans for only state and local government workers, joining Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands. Twenty-two states and territories have a full State Plan, which covers state and local government workers in addition to private-sector workers.
Cal/OSHA hearing on extending COVID-19 workplace safety standard
Cal/OSHA is set to meet Sept. 15 to hear public comments on extending the state's COVID-19 workplace safety standard, put in place in 2020 and set to expire Dec. 31. The draft regulation would continue to require employers to "establish, implement, and maintain an effective Illness and Injury Prevention Program" for 2023 and onward. The new definition of close contact as "sharing the same indoor space as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case's infectious period, as defined by this section, regardless of the use of face coverings," seems to be of particular concern to employers.
Recent fines and awards
Florida
- A federal court has ordered Tampa Electric Co. (TECO) to implement a safety compliance plan audited by an independent third party, pay a $500,000 penalty, and be subject to 36 months of probation after it pleaded guilty to willfully violating a standard, which caused the death of five workers and serious burns to another in 2017 at the Big Bend River Station electrical power plant in Apollo Beach. In a plea agreement with the government, TECO admitted to willfully failing to hold a pre-job briefing with the workers performing the work. Federal law makes it a class B misdemeanor to willfully fail to follow a safety standard, where the failure causes the death of at least one employee, and the maximum punishment for a corporation is $500,000.
- A 35-year-old employee of Citrus Harvesting Inc. died from heat exposure on a Duette farm. The Wauchula-based farm labor contractor was cited for two serious violations for exposing workers to hazards associated with high ambient heat and failing to ensure workers were adequately trained on first aid and faces $29,004 in penalties.
- J&L Roofing Inc. in Pompano Beach was cited for one willful violation for exposing workers engaged in roofing activities to fall hazards and one serious violation for failing to train workers on the correct use of fall arrest systems as well as an other-than-serious violation citation for failing to report a work-related hospitalization within 24 hours and a fatality within eight hours as the law requires. The company faces $74,751 in penalties.
Georgia
- Inspections at 78 Dollar General locations nationwide have resulted in more than $6.5 million in penalties, including more than $450,000 in penalties following three inspections in Georgia since 2017. In 2022 inspections in Pembroke, Hogansville, and Smyrna identified four willful and seven repeat violations. The company was cited for failing to keep receiving areas clean and orderly, stacking materials in an unsafe manner, and exposing workers to fire and entrapment hazards by failing to keep exit routes and electrical panels clear and unobstructed. Proposed penalties for the three inspections total $1,292,783.
- A federal safety investigation into an ammonia leak that hospitalized two workers and led to the evacuation of about 50 workers at Pilgrim's Pride Canton poultry processing plant found the employer's failure to properly implement a process management program contributed to the release of ammonia. The company received nine serious citations and faces $110,630 in penalties.
Illinois
- A Roselle contractor, Emerald Inc, who currently owes more than $390,000 in penalties, received an additional $303,105 in proposed fines for exposing workers to deadly fall hazards at a North Barrington job site. Other citations included failing to train workers on the proper use of powered industrial vehicles, not ensuring the use of head, face, and eye protection, and allowing workers to use ladders improperly. The company has contested the citations.
Maryland
- An inspection of VD Construction Services LLC of Hyattsville at a Mechanicsburg, PA work site initiated under the construction targeting program found that the company failed to provide workers with required fall protection equipment, set up and used extension ladders improperly, and did not ensure that workers using pneumatic tools had eye protection. The company received three willful and three serious violations, with proposed penalties of $87,429. The residential framing contractor has been cited for 136 willful, repeat, serious and other violations in 20 workplace safety inspections since 2020.
Nebraska
- A Grand Island waste disposal company, Mid-Nebraska Disposal Inc., was cited for two willful, 15 serious, and one other-than-serious violations following the death of a 20-year-old employee who was attempting to clear a jam in an industrial cardboard baler. Citations allege the company failed to ensure energy sources were locked out, which would have kept the machine's operating parts from moving while the worker cleared the jam and proposed penalties are $337,903. The company has been placed in the Severe Violator Enforcement Program.
New York
- A roofing and siding contractor with a history of safety violations, ALJ Home Improvement Inc of Nanuet, faces $1.3 million in penalties following a fatal fall, the second in three years involving a company employee. The company was cited for nine willful and three serious violations related to fall and eye protection and training.
Wisconsin
- On two separate occasions, inspectors observed workers without adequate fall protection on residential roofs. Overhead Solutions Inc. of Suamic was identified as the general contractor responsible for the employees and was cited for exposing workers to falls and not ensuring fall protection equipment was used effectively. Proposed penalties are $37,293.
Whistleblower fine
- Shreveport, Louisiana-based Metro Aviation LLC, a helicopter ambulance services company was fined more than $188,000 for allegedly retaliating against a pilot who twice refused to fly in 2021 because of concerns about limited visibility. The company was ordered to reinstate the pilot and pay him more than $171,000 in back wages and $17,000 in other damages. It plans to appeal.