Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA
video
After Hours: Evaluating an OSHA Citation - Should You Contest the Citation?
Partner Mark S. Dreux reviews and analyzes five key factors that influence defense costs when handling an OSHA citation in this edition of After Hours.
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Rulemaking
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OSHA Issues Enforcement Guidance on June 1 HAZCOM Compliance Deadline: What Industry Needs to Know

OSHA substantially revised the 1994 Hazard Communication Standard (HCS) in 2012 and by June 1, 2015 most employers have to be in full compliance with the new requirements. Many employers, especially those who work with chemical mixtures, are concerned about their compliance with the new requirements for container labels and Safety Data Sheets (SDS).
 
According to a recent Enforcement Guidance Memorandum from OSHA, these employers will not be cited provided 1) they are able to demonstrate they exercised “reasonable diligence and good faith to comply,” but were unable to obtain the required hazard information from their respective upstream suppliers in time; and 2) they have labeling and MSDS’s which are in compliance with the 1994 HCS.

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Rulemaking, Process Safety Management, Agency News & Initiatives
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President’s Budget Proposal Seeks Enhanced Civil Penalties under OSH Act

In its budget proposal for Fiscal Year 2016 (“FY 2016”), the Obama Administration has asked Congress to increase civil penalties for violations of the Occupational Safety and Health Act (“OSH Act”). As the proposal notes, OSH Act civil penalties have been increased only once since the law was passed 44 years ago. In addition, the proposal urges Congress to apply the Federal Civil Penalties Inflation Adjustment Act to the OSH Act, which would increase the civil penalties to keep pace with inflation.

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Rulemaking, Recordkeeping
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State Plan Employers: Federal OSHA’s New Reporting and Recordkeeping Requirements May Not Apply at State Level

On January 1, 2015, Federal OSHA’s new reporting and recordkeeping requirements went into effect. In addition to reporting all employee fatalities within eight hours, employers will now also have to report work-related in-patient hospitalizations of one or more employees, amputations, and physical eye loss within 24 hours of the incident. OSHA has also updated the list of partially exempt industries that do not have to routinely keep OSHA injury and illness records. This is great news for newly exempt industries like gasoline stations that no longer have to maintain and post OSHA 300 records.

Before celebrating, employers should know that these federal amendments may not necessarily apply in states with their own state OSHA plans. In fact, many of the 27 state OSHA plans have not yet adopted these changes. Employers in state plan states should therefore confirm the reporting and recordkeeping requirements with their State Plan Office.

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Rulemaking, Recordkeeping
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OSHA Ramping Up for Rulemaking on “Continuing” Recordkeeping Violations

Recent OSHA activity indicates the agency will soon unveil its proposed rule to make recordkeeping violations “continuing” for purposes of OSHA’s six-month statute of limitations (SOL).  In addition to placing the rule on its Spring 2014 Regulatory Agenda, OSHA most recently announced the rule will be on the Advisory Committee on Construction Safety and Health’s (ACCSH) agenda for its December 3-4, 2014 meeting. According to the expected amendment, recordkeeping will become an ongoing obligation. This means the six-month period to issue a citation will restart every day an employer fails to correct an existing violation. If promulgated, the rule could significantly expand OSHA’s window to issue recordkeeping citations.

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Rulemaking, Agency News & Initiatives
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OSHA Expands Scope of Severe Injury Reporting Rule; Employers Must Now Notify OSHA of Fatalities, All In-Patient Hospitalizations, Amputations and Eye Loss

On September 11, 2014, OSHA announced new requirements for the severe injury reporting rule. Employers will now be required to notify OSHA of all work-related in-patient hospitalizations, amputations and eye loss within 24 hours of their occurrence. Employers must still report work-related fatalities within 8 hours. The final rule becomes effective on January 1, 2015. This change will certainly lead to more inspections and permit OSHA (and the public) greater access to employers’ injury and illness data.

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Discrimination / Whistleblowers, Agency News & Initiatives
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OSHA Extends Life of Untimely Whistleblower Claims by Referring Them to NLRB

OSHA and the National Labor Relations Board (NLRB) have reached an agreement where OSHA will now refer untimely retaliation claims from its Whistleblower Division to the NLRB for review. An OSHA Memorandum from Assistant Secretary of Labor for OSHA, Dr. David Michaels provides greater detail on the inter-agency referral system. Under OSHA’s whistleblower provisions, employees have 30 days to file a complaint for employer retaliation.  The NLRB, on the other hand, provides employees six months to file complaints regarding unfair labor practices. Because in OSHA’s and the NLRB’s view retaliation can be considered an unfair labor practice, the agencies’ agreement effectively circumvents OSHA’s 30 day statute of limitations and prolongs the life of employees’ stale whistleblower claims.

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Presentations
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Arent Fox OSHA Team Hosts Webinar on Possible Changes to the EPA RMP Rule

On August 7, 2014, Arent Fox OSHA Group leader, Mark Dreux, and AcuTech Group, Inc. Technical Manager, Michael Hazzan, presented a webinar on the possible changes to the EPA RMP rule (40 CFR 68) proposed by EPA in their RFI of July 31, 2014, including changing the list of covered chemicals, third party audits, defining RAGAGEP, expanding MI programs, safer technologies & alternatives (or IST by another name), use of the safety case model in RMP, among others.

Readers can access the full webinar presentation (along with slides) by clicking here.

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Presentations, Process Safety Management
webinar
Arent Fox OSHA Team Hosts Webinar on Proposed Changes to PSM Standard and RMP Rule

On June 26, 2014, Arent Fox OSHA Group leader, Mark Dreux, and AcuTech Group, Inc. Technical Manager, Michael Hazzan, presented a webinar on the recommended changes to the PSM Standard and RMP Rule from the Executive Order 13650 Working Group. In the webinar, Mr. Dreux and Mr. Hazzan boil down the Working Group’s interim report and offer critical insight on the recommended regulatory changes and what they could mean for the refining and chemical industries.

Readers can access the full webinar presentation (along with slides) by clicking here.

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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.