The Workplace Safety Report

OSHA for 2015

Ben HuggettShareholder

Littler, Philadelphia

Steve BiddleShareholder

Littler, Phoenix

Marc FreedmanExecutive Director of Labor Law PolicyU.S. Chamber of Commerce

Tom MetzgerShareholder

Littler, Columbus

Marc Freedman, U.S. Chamber of Commerce

National Policy Issues

• Feb. 2013 letter responding to Dec. 2012 inquiry from

United Steelworkers• Employees at non-union workplace can designate a union

representative as their representative to accompany OSHA inspector on walk-arounds

• Regs say rep “shall be” employee of company or third party with particular expertise— such as IH

• Will help unions and others use OSHA inspections as organizing, harassment tool

OSHA LOI Allowing Union Reps to Accompany OSHA Inspectors at Non-Union Workplaces

• Would require employers to submit logs to OSHA only electronically– Employers with 250 or more employees would have to

submit quarterly– Employers with 20-249 employees would only have to

submit summaries annually• Records would then be published on internet with company

and incident specific information– No statutory authority to publish records

• Requested by AFL-CIO in submission to Obama transition• OSHA can’t say how it will protect employee information

Proposed Injury and Illness Electronic Reporting Regulation

• OSHA will grant itself the authority to issue citations against an employer for perceived efforts at suppressing employees from coming forward

• Will not require an employee filing a complaint as statute requires, e.g. without a whistleblower!– Driven by union comments at public meeting– No data, studies supporting this– NEP on recordkeeping did not establish any employer

behavior of this nature• Proposed regulation had not one word of proposed

regulatory text, nor any of the other features of an OSHA rulemaking

Supplemental NPRM Revising Whistleblower Enforcement

Changes for 2015

OSHA Injury and Illness Reporting

• Employers must record work-related injuries and illnesses that meet a specified threshold criteria.– Basic First Aid cases are not recordable

• Employers must report specific work-related incidents.

The Basic Rules

Reporting to OSHA

No exempt employers! Everyone must report!• Report all work-related Fatalities within 8 hours

– includes only work-related heart attacks– includes terrorist attacks– excludes automobile accidents on

public roads • Excepting construction work zones

– excludes commercial plane train, or bus accidents

If death occurs more than 30 days after a work-related incident, it is not reportable.

• Within 24 hours, report all work-related:– in-patient hospitalization of any employee(s)

• Was previously 3 or more employees in 8 hours

– amputations• includes loss of fingertip, without

bone loss– loss of an eye

Must be reported to OSHA only if they occur within 24 hours of the work-related incident.

Reporting to OSHA in 2015

State Plan States – 1/01/2016

Reporting Changes Impact

• OSHA estimates 25,000 new reports in the states that it covers– additional new reports for State Plans

• OSHA Inspections?– Investigation– Report– Corrective actions

• Online Publication by OSHA

• OSHA does not have the right to conduct random inspections!

• OSHA is being aggressive, but they must have Probable Cause to conduct an inspection.

• Complaint• Referral• Fatality/Catastrophe• Neutral Program

– National Emphasis Program– Local Emphasis Program

Enforcement Inspections

OSHA Enforcement and Practices

Other 2015 Activities

• Interviewees have rights– Hourly employees– Management employees– Audio or Video taping is not mandatory– Written statements are not required

• Representation During Walkaround Inspection

Interviews & Walkarounds

• Presumed Joint Employment– Citations to both the Host and the Agency

• OSHA – NIOSH Recommended Practices– Hazard Assessment of Host (hire consultant)– Train workers to recognize hazards– Pre-qualification evaluation of programs– Contractual Agreement– Injury and Illness Tracking– Site specific training (equal to host employees)– Injury Illness Prevention Program– Incident Investigations– Continuing contact with workers

Temporary Worker Initiative

HazCom GHS Updates

• It’s not that scary.Effective Completion Date Requirement(s) Who

December 1, 2013Train employees on the new label elements and SDS format.

Employers

June 1, 2015*

December 1, 2015

Comply with all modified provisions of this final rule, except:

Distributors may ship products labeled by manufacturers under the old system until December 1, 2015.

Chemical manufacturers, importers, distributors and employers

June 1, 2016

Update alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards.

Employers

Transition PeriodComply with either 29 CFR 1910.1200 (this final standard), or the current standard, or both.

All chemical manufacturers, importers, distributors and employers

• Chemical Manufacturers, Importers and Distributors receive consideration for not completing updated SDS and labels if:– Information is not provided by the supplier– Exercise of reasonable diligence and good faith

• Developed and documented the process used to gather classification information from suppliers and status

• Documented efforts to get information from other sources• Documented account of continued dialogue with suppliers• Documented account of continued dialogue with

distributors• Developed course of action for completion of SDS and

labels– Development of SDS and labels within 6 months– Shipment of revised label products within 6 months

GHS Updates Extension

5 key differences from General Industry• Coordinated activities when there are multiple employers at the

worksite to ensure hazards are not introduced into a confined space by workers performing tasks outside the space.

• Requiring a competent person to evaluate the work site and identify confined spaces, including permit spaces.

• Requiring continuous atmospheric monitoring whenever possible.

• Requiring continuous monitoring of engulfment hazards. • Allowing for the suspension of a permit, instead of cancellation,

in the event of changes from the entry conditions list on the permit or an unexpected event requiring evacuation of the space.

Confined Spaces In Construction

26 Regulations• Cranes and Derricks – March• Respiratory Protection – March • Walking Working Surfaces - June• Silica – complete comment review – June• Electronic Recordkeeping & Reporting – August

– Online availability– Reverse Volks decision

• Injury Illness Prevention Program – long term

Pending Rulemaking

Whistleblower Complaints FY’14

http://www.whistleblowers.gov/whistleblower/wb_data_FY05-14.pdf

OSHA 11(c)

SOX

STAA

FRSA

Charges Received by OSHA ACAAHERAAIR21CFPACPSIAEPAERAFRSAFSMAISCAMAP21NTSSAOSHAPSIASOXSPASTAA

© 2015 Littler Mendelson, P.C.