Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA
Agency News & Initiatives
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Perez Confirmed As New Secretary of Labor

President Obama’s nominee to head up the Dept. of Labor was confirmed today by the U.S. Senate on a party line vote, 54-46.  Mr. Perez nomination has languished in the Senate for several months in part because of allegations of unprofessional and politicized behavior while Mr. Perez was Assistant Attorney General within the Dept. of Justice’s Civil Rights Division.  At present it is unclear how Mr. Perez’ leadership will impact OSHA’s focus on enforcement.  During his confirmation hearings, Mr. Perez stated his focus as Sec. of Labor would be on jobs creation remarking “I believe it’s critically important to get Americans back to work, and I believe the Department of Labor can play a critical role.”

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Managing OSHA Inspections
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What Every Employer Should Know About Challenging an OSHA Search Warrant

Summer Associate Thorne Maginnis assisted in preparing this post.

Two weeks ago, we discussed the “Sallman Letter,” a recent OSHA Letter of Interpretation permitting employees at a non-unionized workplace to designate a union-affiliated representative for OSHA inspections.  As we explained, one way that employers can protect themselves against this potential threat is by demanding a search warrant when a union representative is part of the inspection team.  This raises a number of important questions about search warrants that we will address in this post, including: when employers should exercise their right to demand a warrant, what OSHA must do to get a warrant, and how to challenge a warrant, should one be issued.

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Enforcement News & Trends, Agency News & Initiatives
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OSHA’s New Initiative to Enforce Exit Route Standards: How to Ensure that your Exit Routes are in Compliance

On June 17, 2013, in its newsletter “OSHA QuickTakes”, OSHA reported that it has issued a national memorandum on exit routes directing field inspectors to carefully examine whether employers have provided and maintained adequate exit routes from work areas. This comes in response to a massive fire and explosion at a Chinese poultry processing plant on June 4, 2013, in which an estimated 119 employees perished.  Survivors described workers struggling through smoke and flames to reach doors that turned out to be locked or blocked.

The memorandum directs compliance officers to pay particular attention to the following during an OSHA inspection: whether an adequate number of exit routes are provided, that the exit routes are free and unobstructed, and that exit doors are not locked.     

Employers can take the following internal steps to ensure the safety of their employees and that they are in compliance:

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Presentations, Process Safety Management, Managing OSHA Inspections, Enforcement News & Trends
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Tips for Preparing for your OSHA PSM Inspection

On June 5, I had the privilege of speaking at the Texas Chemical Council’s Environmental, Health & Safety Seminar at the Moody Gardens Convention Center in Galveston, Texas. For those of you who were not able to join us, I have uploaded my slide presentation “Tips for Preparing for your OSHA PSM Inspection”. My speech discussed statistical findings from both the recent Refining National Emphasis Program (NEP) Inspections and the Chemical NEP Inspections, a thorough discussion of the citation patterns as well as a overview of OSHA’s enhanced focus on recognized and generally accepted good engineering practices. Finally, I presented six recommendations to help you prepare for your OSHA PSM Inspection. Feel free to download the slide presentation and should you have any questions, please do not hesitate to ask. We’re here to help you Manage OSHA.

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Managing OSHA Inspections, Enforcement News & Trends
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OSHA Facilitates the Entry of Union Representatives into Non-Unionized Workplaces: How Employers Can Protect Themselves

A recently published OSHA Letter of Interpretation (the “Sallman Letter”) could have a profound effect on how OSHA inspections are conducted.  According to 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.  Employees may also designate these persons to act on their behalf as a walkaround representative during an OSHA inspection.  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. 

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Chemical Safety Board
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Chemical Safety Board’s Efforts to Recreate Itself and Force Industry to Conform to its Recommendations

A hydrocarbon release and massive fire took place at a Chevron Refinery in Richmond, California on August 6, 2012.  CSB and several other agencies promptly began investigations of the incident.  CSB’s role is to seek the root cause of the release of hazardous chemicals and make recommendations to the industry to help prevent the same mistake from being made again.  According to the agency’s statutory mandate, CSB may go so far as to recommend measures and propose corrective steps to other agencies, federal and local, in order to make working with chemicals as safe as possible.  In what seems to be turning into a pattern for CSB, however, it has ignored the boundaries of its mandate, directly inserting itself into the decision-making process of how best to rebuild the Richmond Chevron facility.

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Discrimination / Whistleblowers, Enforcement News & Trends
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OSHA Enforces Agenda on Safety Incentive Programs: Imposes Legal Obligation on Employer to Eliminate Incentive Programs Tied to Injury/Illness Rates

Last week, we discussed OSHA’s prohibition on rate-based, safety incentive programs (e.g., a year-end pizza party for no employee injuries). According to the agency, these programs actually encourage employees to underreport workplace injuries/illnesses and should be replaced instead with behavior-based programs that provide positive incentives for reporting.

Now we are starting to see OSHA enforce its policy on rate-based programs. According to a recent formal settlement agreement, the cited employer was not only required to eliminate its rate-based incentive programs, but retain a compensation/benefits expert to evaluate “alternate safety-based provisions in its Incentive and Bonus Programs.”

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Discrimination / Whistleblowers, Enforcement News & Trends
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The Chilling Effect of Safety (Dis)Incentive Programs and How Employers Can Avoid Them

OSHA has become increasingly critical of traditional, rate-based safety incentive programs that, according to the agency, actually discourage employees from reporting workplace injuries. OSHA’s favorite example to use is the year-end pizza party for achieving low incidence rates – as OSHA’s argument goes, while seemingly harmless enough, employees are actually incentivized to withhold injury reports to get free pizza. Assistant Secretary of Labor for OSHA, David Michaels most recently highlighted the agency’s concerns over these programs in a February 4, 2013 OSHA Employees All-Hands Meeting, lumping them in with factors that “undermine a workplace culture of safety.”

Since there is no OSHA standard concerning incentive programs, it was unclear how the agency planned to enforce its policy on these “safety disincentive programs.” Fortunately, OSHA has offered guidance that not only informs employers how they may be cited, but how to tailor their safety programs to create positive incentives and avoid any citation, period.

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Significant Legal Decisions, Machine Guarding
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Sixth Circuit’s Standard for Employee Exposure Nothing New

We have received several questions regarding the Sixth Circuit Court of Appeals’ recent decision in All Erection & Crane Rental Corp., 2012 WL 6028627 (6th Cir. Dec. 5, 2012), which upheld a citation alleging that an employer failed to barricade a crane’s swing radius. Despite no employee injury and OSHA’s failure to actually observe an employee in the hazardous area, the Sixth Circuit concluded employee exposure to the hazard existed because “employees had access to the violative condition.” In light of this, readers have been concerned that All Crane may make it easier for OSHA to prove the element of employee exposure.

At first glance, All Crane may appear to throw open the flood gates for employer liability; i.e., any theoretical possibility of employee contact with a hazard will result in a finding of employee exposure. Fortunately for employers, there’s no need to hit the panic button – this is the same employee exposure standard the Review Commission’s been applying for almost 40 years.

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Chemical Safety Board
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CSB Releases Video on Richmond Refinery Incident Despite Objections from Chevron

On Friday April 19, 2013 during a public meeting at the Richmond Civic Center, the U.S. Chemical Safety Board (CSB) released its video animation of the August 6, 2012 incident at the Chevron Richmond Refinery. While the CSB has frequently garnered awards for its safety videos, this latest installment is not without controversy. On the same day, Chevron published the following statement on its Chevron Richmond Refinery Incident Response website:

“After we previewed the animation, we strongly urged the CSB not to release it. We informed the CSB that the animation contains numerous, material factual inaccuracies, the impact of which is to oversimplify, and in some instances trivialize, decisions that were made on that day. The animation also focuses on the actions of specific individuals, which we believe has the effect, surely not intended, of demeaning the challenges faced by the responding personnel. The reasons behind the incident are far more complex than depicted in the animation and we are disappointed with the CSB's decision to go forward with this unfair depiction.”

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