DOJ Indictment of Senior Project Manager Reminds Employers of Severity of Potential Consequences When Dealing With OSHA Inspectors

A 49-year-old senior project manager for a roofing contractor was indicted on April 19 on three charges that he made false, fictitious and fraudulent statements to federal OSHA investigators. The Department of Justice accuses Peter Nees of lying to OSHA investigators during the inspection that resulted from a fatality at a Jacksonville, Florida, roofing project. Nees faces three counts of violating 18 U.S.C. § 1001, which concerns false statements and concealment, and a maximum penalty of 15 years in federal prison, if convicted on all counts.

The underlying inspection arose when roofer John W. Miles III fell through a skylight at a Jacksonville warehouse. Mr. Miles was admitted to an area hospital and later died as a result of his injuries. OSHA’s inspectors responded to the scene to investigate, and ultimately cited Miles’ employer, Pinnacle Roofing Contractors Inc., for failing to install protective cages over the skylights. OSHA issued two willful citations and proposed penalties totaling $154,000. Continue Reading

President Trump Proposes Defunding the Chemical Safety Board

energyPresident Trump has proposed a budget for next year that would cut all funding for the U.S. Chemical Safety Board. The Chemical Safety Board is an independent federal agency that has operated since 1998. It is responsible for investigating accidents at chemical plants and refineries, such as the Deepwater Horizon and West Fertilizer disasters. Unlike the Occupational Safety and Health Administration, the agency does not issue citations or fines; instead, it makes safety recommendations to the industry.

The CSB has a board of five experts who serve five-year terms and other staff to help with investigations. The CSB also employs investigators and other personnel to assist in its activities, such as go to accident scenes, review evidence, conduct interviews and analyze records. Reports are then made that reconstruct the accidents in detail and make recommendations to improve safety. Investigations can, and often do, last years.

The CSB has recently been plagued with minor issues, including the ouster of its chairman in 2014 when it was alleged the agency was mismanaged. Trump’s 2018 budget proposal indicates he will eliminate the CSB’s annual funding of $12 million. The proposed budget is not final, but it is a signal of the president’s priorities. As such, it is possible the CSB might continue.

The CSB said in a statement that it is disappointed by the proposed budget. Its chairman feels the agency is critical because “[o]ur investigations and recommendations have had an enormous effect on improving public safety.”

The budget proposal gives new insight into the president’s view of the government’s role in workplace health and safety issues. Also interesting is that the president does not call for eliminating the agency – simply defunding it. As such, the board members will stay in place but will lack the funds and money to carry out their mission. It is thus likely that the agency will cease to effectively operate.

Senate Takes Next Step in Eliminating OSHA Recordkeeping Rule

On March 22, 2017, the Senate voted to kill an OSHA regulation that would enable employers to be cited for recordkeeping violations that occurred as long as five years ago. OSHA had created the rule to try to get around court decisions that limited OSHA’s ability to cite recordkeeping violations. In 2012, a unanimous federal court held that OSHA could only cite employers for recordkeeping failures if the violation occurred within six months of when OSHA discovered the violation. Rather than appeal the decision, OSHA issued a new regulation on Dec. 16, 2016.

The new OSHA rule – commonly referred to as the Volks rule – says a recordkeeping error can be cited for up to five years after the mistake was made because the employer continued to not correct its injury and illness logs. The Volks rule was attacked by businesses as an attempt by OSHA to avoid changing the law through Congress, instead issuing a new rule on its own. Moreover, the rule puts employers in a difficult position of having to remember why an injury or illness was not recorded many years ago.

On March 1, the House of Representatives passed a measure to eliminate the rule, and the Senate followed suit, voting along party lines. Now the resolution will head to the president, who is expected to sign it into law.

OSHA’s Top 10 Hits: The Most Common Citations

3d rendering of CAUTION tape.

CitationsOSHA has released its list of the 10 most frequently cited safety and health violations that occurred in the last fiscal year. Not surprisingly, the list has hardly changed from previous years. Employers who take a proactive approach with regard to their health and safety culture find themselves consistently ahead of the curve. These companies know what OSHA is looking for when OSHA shows up unannounced, and are prepared to demonstrate their businesses are compliant with OSHA standards. The top 10 hazards are:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

Employers that do not implement a solid safety and health program addressing such hazards find themselves among workplaces that have serious worker injuries and face serious citations. Last year alone more than 4,500 workers were killed, and approximately 3 million were injured.

No employer can escape these hazards. The top 10 citations span every industry, and range from fall hazards in construction or energy to lockout/tagout in manufacturing or food production to electrical wiring in nearly every line of work. Moreover, there were 32,000 federal OSHA inspections last year – and OSHA will continue to vigorously go after companies that do not comply with these standards.

To decrease the likelihood of injury in their workforce and the risks of serious OSHA citations, companies can hire a team to conduct a thorough audit of workplace safety rules and culture to ensure the business is compliant with OSHA’s standards. Moreover, such a team can suggest best practices to ensure a safe workplace with minimal worker injuries. This will reduce liability with OSHA for both the most common OSHA citations and any others that may arise.

OSHA’s Attempt to Remove One Word From Lockout/Tagout

Tracing and tracking in the warehouseAlthough the Occupational Safety and Health Administration’s (OSHA’s) proposed revision to its lockout/tagout standard deletes only one word, business representatives and manufacturers believe it will cause a drastic and detrimental change for employers. OSHA’s lockout/tagout rule requires employers to implement procedures to prevent worker injuries from machines that may start operating without the workers’ anticipation. Often, employers require workers to use locks on power switches when maintaining or servicing a machine and to remove the lock once the machine is ready to be used. This helps prevent workers’ limbs being crushed when a machine starts up. This standard, however, applies only when there is an unexpected energization or start-up of the machine. OSHA proposed on Oct. 4, 2016, to remove the word “unexpected” from the standard.

OSHA promotes this dramatic change as a “clarification,” and claims it intended for the standard to cover any start-up that occurs before removing a lockout/tagout device. Yet OSHA is aware that both a federal appeals court decision and an Occupational Safety and Health Review Commission final order have concluded that a machine that has a delay between being turned on and starting is not covered by the lockout/tagout standard because it does not start “unexpectedly.” Indeed, OSHA’s Compliance Directive contains detailed instructions on how OSHA can attempt to cite a company that uses this defense. Continue Reading

OSHA penalties keep going up … and up … and up …

Fifty and Hundred Dollar BillsDespite keeping the maximum penalties to be assessed for safety and health violations stagnant for more than 25 years, OSHA has again raised the maximum fines for violations for the second time in five months. In August 2016, OSHA implemented a one-time catch-up adjustment for civil penalties pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. As a result, for the first time since 1990, the maximum fines assessed for citations increased from $7,000 and $70,000 for Serious and Repeat/Willful violations, to $12,471 and $124,709, respectively. But OSHA was not ready to stop there.

The 2015 Act indexed OSHA penalties to inflation, with the exact inflationary adjustment to be published in the Federal Register each year by Jan. 15. OSHA’s final rule for 2017 went into effect on Jan. 13. As of Jan. 13, the maximum fines for OSHA violations in 2017 were set as follows:

  • Other than Serious: $12,675
  • Serious: $12,675
  • Failure to Abate: $12,675 per day beyond abatement date
  • Repeat: $126,749
  • Willful: $126,749

That means for all violations in which the penalty is assessed after Jan. 13, 2017, employers will be subject to the 2017 maximum-level fines. In addition, because the Federal Civil Penalties Inflation Adjustment Act Improvements Act provided for an inflation adjustment “annually,” employers can expect a similar increase this time next year. Thus, barring wholesale changes from the new administration in Washington, the financial risks for employer noncompliance with OSHA regulations will be higher than ever before in 2017–and those financial risks promise only to keep going up in the future.

Federal OSHA Aims to Follow California’s Lead in Adopting Strict Rules Preventing Workplace Violence in Health Care Settings

California State CapitalOn Dec. 7, 2016, the federal Occupational Safety and Health Administration (OSHA) published a request for information (RFI) to solicit information on a potential standard to prevent workplace violence in health care and social assistance settings. Currently, federal OSHA has no standard addressing prevention of workplace violence for health care facilities. OSHA’s RFI follows the California Division of Occupational Safety and Health Administration’s (Cal/OSHA’s) action on Oct. 21, 2016, adopting a state standard intended to reduce workplace violence against health care workers in California. Cal/OSHA’s standard is by far the country’s strictest occupational safety and health regulation governing workplace violence for health care workers.

Cal/OSHA’s standard was adopted after nearly two years of meetings and work, and it is monumental for at least three reasons. First, federal OSHA currently has no specific standard governing workplace violence, and it is the first time that a state OSHA agency has adopted a standard addressing the prevention of workplace violence for health care facilities. Second, the standard is by far the country’s strictest occupational safety and health regulation governing workplace violence for health care workers. And third, the California standard sets an extremely high bar for other state OSHA plans, as well as federal OSHA, when these other agencies consider changes to their respective standards. Continue Reading

Circuit courts of appeals continue to try to rein in OSHA’s expansive view of the six-month statute of limitations

supreme court pillarsIn a highly anticipated decision to close the 2016 calendar year, the Fifth Circuit Court of Appeals ruled on Dec. 29 that OSHA is barred from citing a Texas oil refinery for alleged violations that took place more than six months before the citations were issued. In Delek Refining Ltd. v. OSHRC, the Fifth Circuit unanimously agreed with a 2012 appeals court decision involving a similar argument from OSHA about alleged record-keeping violations. In Delek, the employer argued that the refinery could not be cited for alleged process safety management violations that were more than six months old. The Occupational Safety and Health Review Commission rejected that argument by a 2-1 vote, and the employer appealed to the Fifth Circuit.

OSHA has consistently argued that employers are obligated to correct safety and health problems when the first such problem occurs, and that the violations “continue” until abated. This argument, if adopted, essentially allows OSHA to toll the six-month statute of limitations, potentially indefinitely. The Fifth Circuit struck down this argument in Delek in an opinion that recognized the seemingly indefinite expansion of the statute of limitations. The Delek court held that the oil refinery’s failures to address the findings of the process hazard analyses were single events capable of triggering the statute of limitations. The Delek court also highlighted that if OSHA’s argument were adopted, the six-month statute of limitations would be rendered meaningless. Continue Reading

OSHA Expands Employers’ Reporting Requirements for Work-Related Injuries and Fatalities

OSHA_safety_478369167On Sept. 11, 2014, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced revisions to its rule that requires employers to notify OSHA when employees suffer a work-related hospitalization or fatality. Under the previous rule, OSHA’s regulations required an employer to report the work-related fatality of one or more persons and the hospitalization of three or more workers for more than first aid. OSHA did not require employers to report the hospitalization of one employee, amputations, or the loss of an eye under the previous version of the rule.

The revisions announced in September 2014 expand employers’ reporting requirements. Under the revised rule, employers will be required to notify OSHA of work-related fatalities within eight hours, and work-related in-patient hospitalizations, amputations, or losses of an eye within 24 hours. Occupational Injury and Illness Recording and Reporting Requirements—NAICS Update and Reporting Revisions, 79 Fed. Reg. 181 (Sept. 18, 2014) (to be codified at 29 C.F.R. pt. 1904). Continue Reading