Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA
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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Presentations
event
Webinar on OSHA’s and EPA’s Plans to Modernize PSM and RMP


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:

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Discrimination / Whistleblowers, Enforcement News & Trends
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Disciplining an Injured Employee for Violating a Safety Rule

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.

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Multiemployer, Enforcement News & Trends, Agency News & Initiatives
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OSHA Inspectors Focusing on Hazards to Temporary Workers – How Employers Can Prepare

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.

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Rulemaking, Agency News & Initiatives
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OSHA Extends Comment Period on Proposed Silica Rule for 15 Days to February 11, 2014

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.

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Enforcement News & Trends, General Duty Clause, Agency News & Initiatives
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OSHA Circumvents Rulemaking by Implementing “Recommended” Air Contaminant Exposure Limits that are More Rigorous than Standard PELs: Which Exposure Limits Should Employers Follow?

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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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.