In one of the Trump administration’s first official acts, White House Chief of Staff Reince Priebus issued a memorandum on January 20, 2017 implementing an immediate freeze on all pending regulations until they have been reviewed and further action has been approved by President Trump’s new agency heads. Regulatory freezes during a change in administration are not uncommon, and President Obama issued a virtually identical memorandum upon taking office in 2009. However, the Trump administration’s directive takes on additional significance, as it appears to be the symbolic start of President Trump’s efforts to make good on his campaign promise of eliminating what he has characterized as overly-burdensome regulations. It also marks his first steps toward rolling back key components of President Obama’s regulatory agenda, including a number of labor and employment initiatives put in place by the Department of Labor and the Occupational
Blog Posts by Mark S. Dreux
On December 29, 2016, a three-judge panel from the US Court of Appeals for the Fifth Circuit unanimously vacated two OSHA citation items issued to a Delek Refining Ltd. (“Delek”) facility for alleged safety violations that occurred years prior to its ownership of the refinery. The decision is a significant victory for employers because it marks the second time that a federal appeals court has rejected OSHA’s attempt to allege the existence of a “continuing violation” that suspends the six-month statute of limitations contained in the OSH Act.
PSM STANDARD – Recent Fifth Circuit opinion limits OSHA’s power to issue citations for failing to address PHA and audit findings.
PSRG Inc. is pleased to announce that we will hold a special PSM/RMP Forum Luncheon Series from January 18, 2017 to February 22, 2017 in various locations. You are cordially invited to attend the program that is most convenient for you. There is no fee to attend this event. A complimentary buffet lunch will be provided.
After more than three years of review and iterations on proposed modifications to the RMP Rule (40 CFR 68), EPA announced on December 21 the long-awaited FINAL RULE. The 372-page final rule bolsters new requirements for third party audits, incident investigations, emergency preparedness and response, and information sharing which will affect every covered facility.
Recently, the California Division of Occupational Safety & Health Standards Board approved a new safety standard designed to provide comprehensive regulatory protections for workers exposed to workplace violence in healthcare settings. The standard, which was sponsored by several labor unions, will require covered healthcare providers to develop workplace violence prevention plans, training programs, and recordkeeping procedures to track certain incidents of workplace violence.
In a major blow to OSHA’s ongoing efforts to modify existing safety and health standards through informal agency guidance, a unanimous panel of federal judges recently invalidated a July 2015 OSHA memorandum that had significantly narrowed the Process Safety Management standard’s retail facility exemption. Retail facilities have been exempt from the PSM standard since its May 1992 promulgation, based on the understanding that hazardous chemicals are usually only present in such facilities in small quantities that are not likely to create a risk of a catastrophic release. In 1992, OSHA issued a letter defining retail facilities as those deriving 50% or more of their income from direct sales of highly hazardous chemicals to end users.
When the Occupational Safety and Health Administration issues a "Citation and Notification of Penalty," employers should always begin evaluating the potential financial impact the OSHA citation could have on the company.
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.
To watch the video, click on the link below.
After Hours is Arent Fox’s online resource for general employment law and labor-management issues. It offers new video features addressing topics and issues of interest to in-house counsel and human resources professionals.
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.
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.
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.
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.
According to an OSHA Letter of Interpretation (the “Sallman Letter”), employees at a workplace without a collective bargaining agreement may designate a person affiliated with a union to act as their “personal representative” for OSH Act purposes. This novel interpretation creates new threats to the protection of proprietary information, the risk of tort liability and opens the door to union organizing campaigns.
Partner Mark S. Dreux discusses the potential ramifications of the Sallman Letter in this edition of After Hours.
To watch the video, click on the link below.
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.
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.
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.
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.
Join Arent Fox OSHA practice leader, Mark S. Dreux, along with AcuTech Group, Inc. Technical Manager, Michael Hazzan, as they lead a webinar discussing the May 2014 progress report issued to the President by the working group of six federal agencies established by Executive Order 13650 to examine and improve the safety and security of the US chemicals industry. The webinar will discuss issues including:
Disciplining employees for violating safety and health rules is a critical component of any good safety and health program. OSHA's recent policy on employee discipline for violating safety and health rules undercuts the use of such discipline and encourages employees to consider possible claims for retaliation. This policy states that employers should only enforce “legitimate safety and health rules" and sets forth a series of possible claims for employees challenging the discipline to consider. The claims provided include: (1) whether the discipline was proportional to the infraction, (2) whether it was consistently applied to other employees and (3) whether it was based on a vague rule.
This past year, OSHA launched an enforcement initiative focused on improving safety for temporary workers. The initiative references an OSHA memorandum (the April Memo) from former Deputy Assistant Secretary Richard Fairfax, which serves as the initiative’s main enforcement mechanism, directing inspectors to identify temporary workers and evaluate whether they are exposed to any safety hazards.
As expected, we have seen a correlated rise in inspections that examine how host employers treat temporary workers, especially with regard to training. Fortunately, an April 2013 Memo from former Deputy Assistant Secretary Richard Fairfax and OSHA’s September 5, 2013 Update provide the blueprint for how inspectors will conduct their investigations. Moreover, OSHA’s webpage on the topic (Protecting Temporary Employees) supplements the April Memo by detailing what in OSHA’s view are the host employer’s responsibilities for temporary workers. Taken together, these documents provide a game plan so that employers ensure employees are properly trained and can successfully demonstrate compliance and avoid citations.
In a press release today, OSHA announced that the comment period for the Notice of Proposed Rulemaking on Occupational Exposure to Crystalline Silica will be extended 15 days from the original deadline of January 27, 2014 to February 11, 2014.
Stakeholders should go to www.regulations.gov to submit their comments electronically. The hearings on the proposed rule are still scheduled for March 18, 2014.
For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.
Recently, OSHA launched a high-profile effort to address its permissible exposure levels (PELs) for chemicals in the workplace. OSHA last attempted to update its PELs – which are over four decades old – via a rulemaking in 1989. But that effort failed after the Eleventh Circuit struck it down. This time, rather than initiating a rulemaking to lawfully update its standards, OSHA published “recommended” exposure levels on its website which are more stringent than their corresponding PELs.
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