The 11th Circuit Court upheld the Mar-Jac decision quashing a warrant to expand an inspection beyond the accident triggering the inspection. The decision demonstrates the willingness of at least one Circuit to carefully scrutinize OSHA's justification for expanding the scope of an Inspection.
My weekly Round Up of OSHA and relevant legal developments, practical insights and news and observations relevant to Risk Managers, Safety and HR professionals, and executives interested n reducing risk and instilling leadership in the workplace. Special emphasis this week on handling OSHA witness statement demands.
On August 19, 2015, OSHA issued new policies and procedures (Compliance Directive: CPL 02-03-006) for applying a new process for resolving whistleblower disputes. This directive is OSHA’s attempt to institute an early resolution process. This process will be used in conjunction with a regional Alternative Dispute Resolution (ADR) program, as part of OSHA’s overall enforcement of whistleblower statutes. The ADR programs offer whistleblower parties opportunities to negotiate settlements with the assistance of a neutral, confidential OSHA representative who has subject-matter expertise in whistleblower investigations. The Administrative Dispute Resolution Act of 1996 requires each federal agency to “adopt a policy that addresses the use of alternative means of dispute resolution and case management.”
On September 4, the Whistleblower Protection Advisory Committee (WPAC) unanimously voted in favor of several revisions to the OSH Act that would expand protection for workers who are retaliated against for raising health and safety concerns at their workplace.
OSHA issued its final rule on Recordkeeping and Reporting Requirements on September 11, 2014, to take effect on January 1, 2015. Changes include new requirements to report amputations, loss of an eye, and hospitalizations of one (1) or more employees within 24 hours. Federal OSHA did not previously require the reporting of amputations or loss of an eye and did not require reporting of employee hospitalizations unless three (3) employees were hospitalized as a result of a single incident. The new reports, similar to fatality reports, will be posted on OSHA's website. See OSHA's webpage for additional information - https://www.osha.gov/recordkeeping2014/records.html.
Going into 2014, OSHA is continuing its focus of inspecting and, when alleged violations found, citing employers under its recordkeeping standard. Proper recordkeeping has become more critical to employers since OSHA recently issued a proposed rule to publish, in certain cases, the injury and illness data provided by employers.
These are the links I sent to F P attorneys after recently conducting an in-house session on our workplace safety practice. The focus of the links was not on building a safety culture, which is my favorite topic, or on the various labor and employment topics I regularly write upon.
These posts only deal with 2013 OSHA enforcement issues. These posts also do not include other attorneys' posts or great stuff from sites such as TLNT, EHS, etc.
EHS Today just reported that the Philadelphia District Attorney is taking the unusual step of charging two contractors for crimes ranging from multiple murder and manslaughter charges to risking a catastrophe as a result of the fatal collapse of the Philadelphia building last June, that killed 6 people and injured 14.
Under OSHA’s Contingency Plan, all but approximately 10% of its employees are furloughed. If one calls an Area Office, you’ll encounter an Area Director and perhaps an Assistant Area Director, who respond to workplace fatalities or complaints of situations threatening a high risk of death or serious injury. In some cases, senior compliance officers may be involved. Similarly, the five or six top managers in each region are working. This skeleton crew not only respond to workplace fatalities, but they must also somehow issue citations within the six months of commencing an inspection. Despite the unusual circumstances, as recently as last year, the powerful D.C. Court of Appeals upheld the six-month requirement in AKM v. Secretary of Labor.
The Occupational Safety and Health Administration’s Hazard Communication Standard has been changed to now align with the United Nations’ Globally Harmonized System of Classification and Labeling Chemicals (GHS). Since the Hazard Communication Standard became effective almost 30 years ago, employers have had to provide “right to know” information to their employees about the chemical hazards in their workplace. The key difference in the revised standard, however, is that it provides a single set of harmonized criteria for classifying chemicals according to their health and physical safety hazards as opposed to the previous standard that allowed chemical manufacturers and importers to convey information on the labels in whatever format they chose. This revised standard, like the original one, requires chemical manufacturers and importers to evaluate chemicals they produce or import and provide hazard information to employers and employees. However, the old standard’s “Material Safety Data Sheets” (MSDS) are now replaced by more detailed Safety Data Sheets (SDS’s) as well as new labeling requirements. Under the new standard, OSHA is requiring that all employees be trained on the new rule and how to understand the new SDS’s and new labels by December 1, 2013.