OSHA Developments

OSHA’s New Enforcement Tool: The Press Release

OSHA is beating its enforcement drum and employers in virtually all industries have heard the drumbeat. Statements such as “OSHA enforcement is way up” and “OSHA enforcement is at historic levels” often are heard from employer and employee groups around the country. What is driving this message? A close look at OSHA’s enforcement numbers suggests that enforcement is “up” slightly from past years, but not significantly so. While OSHA has implemented new enforcement programs – such as the Severe Violator Enforcement Program (SVEP) – these enforcement programs alone do not explain the “message.” In fact, the SVEP essentially was a replacement for the “Enhanced Enforcement Program” utilized in the adminis- tration of President George W. Bush.

What is different is that the current leadership of OSHA is using the power of the media to pressure employers into compliance. It is regu- larly issuing multiple national or regional news releases announcing citations against employers. These press releases often get picked up in national trade publications or local papers and are published without any effort to present the employer’s viewpoint. The alleged violator may not even have had a chance to fully review the citations and provide its version of the underly- ing facts.

Whether OSHA’s current approach to enforce- ment will be successful in curbing violations is debatable. But such an approach has had the effect of convincing stakeholders that overall OSHA enforcement is up significantly and that the Agency will utilize all of its enforcement might against cited companies. At least for the immediate future, employers should beware of this new enforcement tool.

OSHA Proposes Major Overhaul of Recordkeeping Rule

OSHA has proposed changing the industries that would be generally exempt from maintaining regular workplace injury and illness records. Employers in exempt industries are not required to maintain OSHA 300 Logs, complete OSHA 301 incident report forms, or complete the OSHA 300A annual summary forms. OSHA’s proposed rule also would require employ- ers to report workplace amputations to the Agency within 24 hours, as well as all in-patient hospitalizations within 8 hours. The existing recordkeeping rule (Part 1904) requires employ- ers to report in-patient hospitalizations of 3 employees or more to OSHA within 8 hours. Any workplace fatality would continue to be reportable, as well.

OSHA’s recordkeeping rule excludes certain employers in relatively low hazard industries from the Agency’s basic recordkeeping require- ments. The current exemption list is industry- specific and based on the now-outdated 1987 Standard Industrial Classification (SIC) coding system. OSHA’s proposed rule will re-categorize the exempt industries based on the North American Industrial Classification System (NAICS), which is the system currently used by federal agencies for statistical research purposes. The proposal also will remove some industries from the list based on new injury and illness data compiled by the Bureau of Labor Statistics.

The proposed change is significant. Some employers who for years have been regularly exempt from maintaining OSHA 300 Logs will now be required to keep them. Recordkeepers will need to be trained on identifying a work-related injury and illness and recording properly injuries and illnesses that meet OSHA’s severity criteria. Conversely, some employers that have been required to keep records will now be exempt from this obligation.

Employers should check the following lists to determine where they fit within OSHA’s proposed rule:

Reporting In-Patient Hospitalizations and Amputations

Under OSHA’s recordkeeping rule, employers must report to OSHA within 8 hours all work-related fatalities and in- patient hospitalizations of 3 employees or more. OSHA’s proposal would broaden this reporting requirement to include work-related amputations and any work-related in-patient hospitalization of an employee. The former would be required to be reported within 24 hours of the occurrence of the incident and the latter would need to be reported within 8 hours. When OSHA Area Offices are open, telephone reports should be directed there. When these offices are closed, telephone reports should be made to 1-800-321-OSHA.

With this proposal, OSHA is following many states that have adopted more stringent reporting requirements for amputations and in-patient hospitalizations.

Employers have until September 20, 2011, to file written comments on the proposal and are encouraged to participate in the rulemaking process.

“Therapeutic Exercise” Considered Medical Treatment Beyond First Aid

In a letter of interpretation, OSHA has concluded that “therapeutic exercise” recommended by a health care professional in response to minor work-related “pain” constitutes medical treatment under OSHA’s record- keeping rule. OSHA was asked whether exercises recom- mended for a short period by an on-site health care pro- fessional when an employee is experiencing minor pain would qualify as medical treatment and be recordable, assuming the pain was work-related. OSHA’s response was a definitive “yes.” “Therapeutic exercise” is not included on the list of first aid treatments. Furthermore, the duration of the exercises makes no difference in an employer’s recordability determination:

The fact that physical therapy treatment, including exercise, is normally provided over an extended peri- od of time and is administered by licensed personnel with advanced training was taken into account during the rulemaking process to determine the composition of the first aid list. However, in implementation of the final requirements, the number of treatments rendered is not a factor in distinguishing between medical treatment and first aid.

OSHA also stated that this sit- uation would not qualify for the exception from recordability for “minor musculoskeletal discomfort” (where the employer assigns a work restric- tion for the purpose of preventing a more serious condition from developing). OSHA emphasized that this exception is “very narrow in scope” and that once any type of medical treatment is offered — including therapeutic exercise — the case is recordable. “Work-related minor musculoskeletal discomfort treated with therapeutic exercise constitutes a recordable case.”

According to Brian Lewis, a member of Jackson Lewis’ Workplace Safety Compliance practice in Boston, “Employers should take note of this new letter and ensure that their recordkeeping practices are aligned with OSHA’s interpretation.”

Residential Construction Employers Have Until September 16 to Comply with New Fall Protection Directive

OSHA has announced that it will give employers in resi- dential construction an additional three months to come into compliance with its new fall protection directive. OSHA published the new directive on December 16, 2010, and originally gave employers until June 16, 2011 to ensure their fall protection practices were compliant.

The three-month extension, according to OSHA Assistant Secretary Michaels, will give employers “the additional time and flexibility they need to alter their work prac- tices in accordance with the requirements of the new directive.”

Since 1995, employers in residential construction could utilize certain specified alternative procedures, instead of conventional fall protection, without a prior showing of infeasibility or greater hazard and without developing a written, site-specific fall protection plan. The latter requirements are generally mandated by OSHA’s con- struction fall protection standard at 29 CFR 1926.501(b). The new directive reflects OSHA’s revised position that the use of alternative fall protection measures is appro- priate only when conventional fall protection in residen- tial construction is deemed to be infeasible or would create a greater hazard.

Furthermore, residential construction employers must develop a written, site-specific fall protection plan when utilizing these alternative methods. According to the directive, “[a] written plan developed for repetitive use for a particular style/model home will be considered site-specific with respect to a particular site only if it fully addresses all issues related to fall protection at that site.” Ken Wentz, a Jackson Lewis attorney who works closely with the home building community, warns that this direc- tive could signal an increase in focus by OSHA on residen- tial construction. Mr. Wentz said, “Don’t be surprised that with this directive coming into effect, we see more inspections on home building sites and a greater overall enforcement emphasis on construction.”

OSHA to Initiate Major Changes to Whistleblower Protection Program

In response to external and internal reviews of the operation and effectiveness of OSHA’s Whistleblower Protection Program, OSHA has announced significant changes in how the Agency runs the program. OSHA enforces the whistleblower provisions of 21 different statutes, including Section 11(c) of the OSH Act and other workplace and environmental safety and health laws.

The significant changes announced by OSHA include:

• Reorganizing the Agency so that the Whistleblower Protection Program reports directly to the Assistant Secretary of OSHA;
• Adding 25 new investigators; and
• Revising the Whistleblower Investigations Manual to “provide further guidance on the enforcement program to help ensure consistency and quality of investigations.”

Employers should continue to monitor OSHA’s actions in this area carefully and, in particular, review the updated Investigations Manual once it is released.

State Update

New Law Requires Connecticut Health Care Employers to Protect Employees from Workplace Violence

Health care employers in Connecticut have new obliga- tions to protect their employees when it comes to workplace violence. Public Act No. 11-175, signed by Governor Dan Malloy on July 13, 2011, applies to any Connecticut health care employer who employs at least 50 employees, whether full-time or part-time.

Requirements

The law requires health care employers to develop and implement plans, policies and training programs designed to prevent and respond to workplace violence. On or before October 1, 2011, health care employers must establish and convene an ongoing workplace safety committee (comprised of at least 50 percent non-man- agement employees) and conduct an annual workplace violence risk assessment. In addition, on or before January 1, 2012, and annually thereafter, health care employers must work with the workplace safety commit- tee to develop and implement a written workplace violence prevention and response plan based on the findings of the risk assessment. Health care employers also will be required, to the extent practicable, to adjust patient care assignments if requested by a health care employee as a result of a patient who intentionally physically abused or threatened the employee.

The new law also requires health care employers, effec- tive October 1, 2011, to maintain detailed records on incidents of workplace violence and, upon request, report to the Department of Public Health the number and location of any workplace violence incidents that occurred on the employer’s premises. Also effective October 1, 2011, health care employers must report certain incidents of workplace violence against a health care employee performing his or her job duties to the employer’s local law enforcement agency within 24 hours after the incident.

Federal OSHA

The federal Occupational Safety and Health Administration does not have a standard regulating workplace violence, although the Agency has stated that it can utilize the General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act of 1970) to require employers to take feasible measures to protect employees from violence in the workplace where that constitutes a “recognized hazard” (as it often does in health care facilities). Health care employers, among others, who must maintain OSHA logs of occupational injuries and illnesses (Form 300) also may have to enter on their logs injuries and illnesses to employees resulting from workplace violence.

Next Steps for Employers

Health care employers in Connecticut should examine their employee handbooks and policies to determine what policies, if any, they have on workplace violence prevention and response. Employers will need to take other steps to comply with the law, such as establishing a workplace safety committee. Employers are urged to make certain that their Human Resource or risk manage- ment professionals are aware of this law so that they may help disseminate information and provide appropri- ate training.

If you have questions about the new Connecticut law, please contact Tanya Bovée, This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; Beverly Garofalo, This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; Michael Soltis, This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; or Margaret Strange, This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

About the Workplace Safety Compliance Practice Area

Jackson Lewis’ Workplace Safety Compliance practice, led by former Department of Labor OSHA attorney, Brad Hammock, provides comprehensive legal services to employers seeking to comply with federal and state OSHA rules, defend against OSHA enforcement actions, and participate in OSHA rulemaking proceedings. With experienced OSHA attorneys located strategically throughout the nation, Jackson Lewis is uniquely positioned to serve all of an employer’s workplace safety needs: