OSHA watch
Proposed rule on emergency response raises concerns
On February 5, the proposed Emergency Response rule for emergency and related responders was published. Ogletree Deakins, a labor and employment law firm, writes, "With the potential exception of the COVID-19 standards OSHA created, no other proposal for a change in OSHA standards in recent memory has been as comprehensive as these changes." The proposed rule would cover not only firefighting, but also emergency medical services, tactical rescue, and the equivalent services offered in workplaces by employer-provided services.
The rule categorizes subject employers as either Emergency Service Organizations (ESOs) or Workplace Emergency Response Employers (WEREs), sometimes referred to as Workplace Emergency Response Teams (WERTs). WEREs encompasses organizations with employees who, as part of their regular duties, respond to emergencies like fire, medical emergencies, or environmental hazards. It's not necessarily their primary function, but they are designated personnel trained and equipped to handle such situations. ESOs include organizations whose primary function is emergency response such as fire departments (both paid and volunteer), ambulance services, search and rescue teams, and hazardous materials response teams.
While there is a differentiation between these types of entities, many of the requirements applicable to ESOs are identical to those for WEREs/WERTs. These include, but are not limited to, establishing and implementing a written emergency response program (ERP), conducting facility vulnerability assessments, developing and implementing a written comprehensive risk management plan, medical evaluation of team members, fitness programs, mental health services, pre-incident planning, incident management system, post-incident analysis.
Unless the comment period is extended, stakeholders' written comments are due by May 6, 2024.
Controversial final rule on worker walkaround representation under White House review
On Feb. 9, the Worker Walkaround Representative Designation Process final rule was sent to the Office of Information and Regulatory Affairs at the Office of Management and Budget (OIRA), which is usually the final step in the process before a rule is officially published in the Federal Register. It would allow workers to designate someone who doesn't work for their employer, including someone from a union, plaintiff attorneys, community activists, or other organizations, to accompany an inspector into nonunion facilities to represent them during a "walkaround" inspection. Business groups have actively opposed the rule.
New Process Safety Management Enforcement Manual
Without announcement, on January 26, 2024, a new Process Safety Management directive was posted, replacing the long-standing 1994 compliance directive. Significant modifications in this instruction include:
- Removal of the Appendix A PQV Audit Checklist in the OSHA Instruction CPL 02-02-045A (REVISED), September 13, 1994
- Incorporation of existing OSHA PSM enforcement policies into a question-and-response format.
State plans must indicate their intent to adopt the directive within 60 days. They must have policies and procedures that are identical to or at least as effective as the federal program and plan adoption must occur within six months.
Employers are advised to review their PSM programs to ensure that they meet the enforcement expectations in the manual.
Hazard Huddle Challenge
Aimed at boosting worker participation in implementing hazard controls and job hazard analyses, the Hazard Huddle Challenge is part of the annual Safe+Sound campaign. The challenge encourages managers to have discussions with workers about workplace safety hazards and provides a list of questions to guide the discussions. Participants are asked to highlight their actions and progress on social media using the hashtag #SafeAndSoundAtWork. A virtual challenge coin is available for download for individuals who complete the challenge.
National Safety Stand-Down to Prevent Falls in Construction
The annual National Safety Stand-Down to Prevent Falls in Construction, which encourages employers to set aside time during the week to focus on fall prevention efforts and training is set for May 6-10. Resources include suggestions to prepare for a successful stand-down and highlights from past events. A webpage lists events that are free and open to the public.
Attorneys general re-issue call for emergency standard on heat
An earlier petition from a coalition of seven attorneys general to issue an emergency temporary standard aimed at protecting workers from heat exposure was denied in April 2023. The new petition submitted Feb. 9 includes attorney generals from Arizona, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, and Pennsylvania and D.C.
MSHA safety alerts
State OSHA
Cal/OSHA
Penalty increases
On January 1, 2024, penalties were adjusted for inflation for certain violations. For citations issued on or after January 1, 2024, the maximum penalties for violations classified as Regulatory, General, Willful, or Repeat are as follows:
- The maximum penalty for General and Regulatory violations, including Posting and Recordkeeping violations is $15,873.
- The maximum penalty for Willful and Repeat violations is $158,727.
- The minimum penalty for Willful violations is $11,337.
The only maximum penalties that went unchanged are for violations classified as Serious, including Serious Tower-Crane and Serious Carcinogen-Use violations. Those penalties remain at $25,000.
Update to lead regulation
The Standards Board passed a sweeping lead regulation despite concerns from the construction and battery industries about timeline feasibility and inaccurate cost estimates. Among other changes, the update drastically lowers the threshold for testing (from 30 micrograms of exposure to 2 micrograms) and the PEL (from 50 micrograms to 10 micrograms). Importantly, the new update covers both construction and non-construction worksites. Notably, the Standards Board acknowledged implementation timing concerns, and the rulemaking took the rare step of asking the Office of Administrative Law to delay its approval by six months, which will delay enforcement until January 2025.
Top ten violations
Many standards are unique to California and there are differences from federal regulations, even for similar standards. The top ten violations look quite different from the federal top ten. Here are the top ten for calendar year 2022:
- Injury and Illness Prevention Program, General Industry - 3303
This standard mandates a written Injury and Illness Prevention Program (IIPP) and is consistently the most frequently cited. - Outdoor Heat Illness Prevention - 3395 (#2 since 2015)
Under the current Special Emphasis Program (SEP), all outdoor or indoor heat-related complaints are addressed via onsite inspection. No investigation by letter is allowed. - IIPP - Construction (consistently in top 5)
- COVID-19 Prevention - 3205
- Reporting Work-Connected Fatalities, Serious Injuries/Illnesses - 342
- Lockout/Tagout - 3314
- Portable Fire Extinguishers - 6151
- Hazard Communication - 5194
- Portable Ladders - 3276
- Emergency Eyewash/Shower - 5162
MIOSHA
Standards update
General Industry Standard Part 8, Portable Fire Extinguishers
Effective February 2, 2024, the rules were amended to adopt portions of the federal standard Subpart L - Fire Protection 29 CFR 1910.155, "Scope application, and definitions applicable to this subpart," and 1910.157, "Portable fire extinguishers." In addition, minor editorial, formatting, and title name changes were made. Here is the revised standard of GI Part 8, Portable Fire Extinguishers and "Strike-bold draft."
ADMN Part 11, Recording and Reporting of Occupational Injuries and Illnesses
Effective February 13, these rules were amended to be at least as effective as the federal rules. Here are the revised standard of ADMN Part 11, Recording and Reporting of Occupational Injuries and Illnesses and "Strike-bold draft."
MNOSHA
Events
Recent fines and awards
Florida
- An investigation into the death of a 39-year-old maintenance employee led to citations for two contractors. The worker was employed by G & R Mineral Services Inc., a Birmingham, Alabama-based maintenance and repair contractor who was hired by HM Southeast Cement LLC. HM Southeast Cement faces three serious violations with $43,554 in penalties for failing to establish specific procedures, perform periodic inspections for controlling hazardous energy, and coordinate lockout-tagout procedures with its contractor. G & R Mineral faces three serious violations and penalties of $38,715 for failing to remove employees from areas surrounding unguarded screw conveyors, failing to establish specific procedures for controlling hazardous energy, and failing to inform the host employer of their lockout/tagout procedures.
- Capt'n Hook's Crane Service Inc., a Melbourne-based crane rental company, was cited for three serious violations for using an uncertified crane operator and operating a hydraulic crane within 200 feet of overhead power lines after a worker was electrocuted. $26,585 in penalties is proposed.
- Homestead-based Stucco Works Inc. was cited for 12 serious violations for failing to maintain a safe working environment and faces $74,555 in penalties after a worker was struck by the hoist arm of a pulley system used to lift buckets of concrete at a residential work site and suffered a fatal head injury. The company has contested the fines.
Georgia
- Columbus-based Aludyne Columbus LLC, which operates as Aludyne Columbus Foundry, was cited for 22 serious and three other-than-serious violations, including not requiring employees to wear appropriately certified electrical suits while working in high-voltage energized areas, and faces $182,344 in proposed penalties. Six days after opening a complaint inspection, investigators learned that a 41-year-old maintenance technician was severely injured by an arc flash from an electrical transformer explosion and opened a second investigation.
- K&D Plumbing, a Silver Creek plumbing contractor, has been fined more than $184,387 for seven safety violations following the death of one of its employees who was working to clear a blockage in a pipe near the end of a 60-foot-long trench. Violations related to confined space entry, safe means of egress, and trench protection.
Illinois
- Oswego-based United Custom Homes LLC was cited for one repeat, one willful, one serious, and one other-than-serious violation and assessed $264,143 in proposed penalties after inspectors observed employees working atop a house under construction without protective equipment. They were also cited for training, ladder, and PIT certification violations.
Massachusetts
- Framingham-based Brothers Construction Services Inc., which also operates as Brothers Construction and Roofing and Brothers Roofing, was cited for eight willful, serious, repeat, and other-than-serious violations and proposed $306,229 in penalties following a complaint that workers on the roof of a residential property were not using fall protection. The roofing contractor has a long history of fall-related safety violations.
Wisconsin
- A federal investigation into how a Tufco LP employee's fingertip was amputated determined that the Green Bay household cleaning products manufacturer failed to control hazardous energy during service and maintenance tasks and failed to report the amputation injury, as required. The company committed one repeat, four serious, and two other-than-serious violations and faces $194,518 in proposed penalties.
- A Madison ice cream plant, AJLS Enterprises Inc. operating as Schoep's Ice Cream, failed to document that equipment was being operated consistent with best engineering processes, update processes following audits, and lacked sufficient process safety management procedures to control the release of hazardous chemicals. It also had violations related to lockout/tagout and machine guarding. The company received 12 serious citations and $145,097 in proposed penalties.