eei spring 2016 meeting title goes here osha legal updateesafetyline.com/eei/conference...
TRANSCRIPT
Title Goes Here
PRESENTED BY
Melissa A. BaileySeptember 27, 2016Washington, D.C.202 887-0855/[email protected]
EEI Spring 2016 MeetingOSHA Legal Update
Agenda
Electronic Recordkeeping Rule
Crane Standard
Silica Standard
Proposed Fall Protection Rule
State Plan Evaluations
Recent Decisions
Section 1910.269/Subpart V
What can we expect in 2017?
New Recordkeeping Provisions
• Annual submission of injury and illness records
• Data will be posted on OSHA website
Electronic Filing
• Additional protection for employees who report an injury or illness
• Limits or prohibits certain common safety programs
Anti-Retaliation
Annual Electronic Filings
Establishments with 250+ employees
• OSHA 300 Log
• OSHA 301 Incident Report
• OSHA 300A Summary Report
Establishments with 20 – 249 employees in certain industries, including utility
• OSHA 300A Summary Report
Filing Dates
New Anti-Retaliation Provisions
Inform employees of right to report injuries and illnesses
Provide “reasonable” reporting procedures that do not deter or discourage employees from reporting their injuries or illnesses
Refrain from taking adverse action against employees for reporting an injury or illness
1
2
3
Inform Employees
Rigid Reporting Requirements
Reporting procedures must allow reporting
of injury/illness within reasonable timeframe
after employee realizes they have suffered a
work-related injury
U.S. Steel
Section 11(c) lawsuit settled in July 2016
Employer agreed to change policy so that duty to
report is only triggered after employee becomes
“aware” of the injury; 8 hours to report
Is U.S. Steel the New Standard
for Reporting Injuries?
Drug Testing
Prohibition of blanket post-incident drug testing
Limit drug testing to incidents where there is a “reasonable possibility”
that drug use was a contributing factor
Employers may continue to conduct drug testing mandated by law, e.g. workers compensation,
DOT
Safety Incentive/Disincentive
Programs
Programs tied to injuries or injury rates may
violate the anti-retaliation provisions
Examples
Entering employees who do not report injuries in
drawing
Rewarding a bonus to team if no one suffers an
injury
Rewarding workers for achieving low rates of
reported injuries and illnesses
Anti-Retaliation Provisions
Enforcement Dates
• Effective dateAugust 1, 2016
• Enforcement date
• OSHA to issue compliance guidance prior to enforcement date
November 1, 2016
Texo v. Perez
On July 8, 2016, several industry groups, including NAM, filed a lawsuit challenging the anti-retaliation provisions
Section 11(c) is the exclusive mechanism for protecting employees against discrimination or retaliation for reporting injuries
OSHA failed to provide evidence that post-accident drug testing and injury-based safety incentive programs discourage employees from reporting injuries
Texo v. Perez
As of September 2, 2016,
plaintiff’s emergency
injunction for a preliminary
injunction is fully briefed
and pending the judge’s
ruling
Plaintiffs may amend
complaint to challenge
posting of injury and
illness data
EEI Activity
On July 13, 2016, EEI met with OSHA to
discuss the new electronic recordkeeping
provisions
Certain types of safety incentive programs have
value
Difficulty of asking supervisors to exercise
discretion in determining who takes a drug test
Revamping programs takes significant time
OSHA interested in working with EEI to
develop compliance guidance
EEI Activity
EEI worked with member representatives to
develop compliance guidance
Draft FAQs sent to OSHA on September 20,
2016
Incentive plans
Drug testing
“OSHA 300 Logs not an indicator of whether
workplace is safe”
Company official identification redacted
OSHA plans to issue compliance guidance
“soon”
Ruling on preliminary injunction motion
will issue prior to November 1, 2016
Next Steps
OSHA plans to issue compliance guidance
“soon”
EEI asked OSHA to delay enforcement date
to give employers time to amend programs
in light of compliance guidance
Ruling on preliminary injunction motion will
issue prior to November 1, 2016
OSHA Crane Standard
Construction Crane Standard
OSHA proposing amendments
Broaden exclusion for forklifts carrying loads
Clarify an exclusion for work activities involving
articulating cranes
Clarify provision for use of demarcated
boundaries for work near power lines
Any opportunity for additional clarifications
or exclusions?
Construction Crane Standard
OSHA has not proposed language
Spring regulatory agenda: NPRM issued in
October 2016
Will OSHA make this deadline?
Crane Operator Qualification
OSHA plans to clarify the operator
certification requirements
Concerns that 2010 certification requirement not
effective
9/26/14: OSHA extends the deadline for crane
operator certification until November 17, 2017
Crane Operator Qualification
Proposed amendments
Clarify certification issues, particularly relating to
“type and capacity”
Fleshing out the certification requirements
Will the requirements look like the results of
the ACCSH conclusions?
Formal classroom training
Initial skills training
OJT/mentoring/practice
Evaluation
Crane Operator Qualification
Key dates
March 31 – April 1, 2015: ACCSH meets with
OSHA
December 2016: OSHA plans to issue a NPRM
Will the November 17, 2017 be extended?
Final Silica Standard
Compliance Dates
• June 23, 2017: All provisions except methods of sample analysis
• June 23, 2018: Methods of sample analysis
Construction
• June 23, 2018: All provisions except the action level trigger for medical surveillance provisions
• June 23, 2020: All medical surveillance provisions
General Industry
Silica Rule – Key Features
Establishes 25 µg/m3 Action Level
Lowers PEL to 50 µg/m3
Hierarchy of control methods to reduce silica exposure:
1. Engineering and work practice controls;
2. Respiratory protection
Requires medical surveillance for certain employees
Silica must be included in hazard communication program
Requires regulated areas where silica is at or above the PEL
Requires written exposure control plan
Industry Implications
Ambiguity on whether outage work or intermittent T&D work is covered under general industry or construction silica standards
Maintenance: Like in-kind replacement work covered under the general industry standards
Construction: Upgrade work covered under the construction standards
Different requirements for construction and general industry silica standards
Construction v. General Industry
Construction
Approximately 9-10 months to come into
compliance
5-day employee exposure assessment
notification
General Industry
Approximately 21-22 months to come into
compliance
15-day employee exposure assessment
notification
Construction v. General Industry
Construction
Written exposure control plan must include procedures to
restrict work areas when necessary
Employer must designate a competent person to inspect
job sites, materials, and equipment, and implement
written exposure control plan
General Industry
No equivalent requirement
No equivalent requirement
Construction v. General Industry
Construction
Respiratory protection based on task (Table 1) or
measured level of exposure
Medical surveillance triggered if employee will be
required to use respirator for 30+ days per year
General Industry
Respiratory protection based on measured level of exposure in compliance with
1910.134
Medical surveillance triggered if employee will be
exposed to silica at or above the action level for
30+ days per year
OSHA’s Response:
OSHA’s Response:
Silica Litigation
April 2016: Several industry groups and unions filed suits in federal court in various courts of appeal
Cases consolidated and being heard in D.C. Circuit
May/June 2016: Plaintiffs filed Statements of Issues OSHA not required to file statement of issues
September 2016: Parties filed joint motion requesting opening briefs be due in November 2016 and final briefs in March 2017
General Industry Fall Protection
Standard
OIRA Review
Proposed rule under review with OIRA since June 22, 2016; last step before issuing final rule
90-day review period but may be extended
Details regarding the final draft OSHA submitted to OIRA unknown
Proposed Rule
• Consistent with current industry consensus standards and OSHA construction industry standards
• Flexibility to choose fall protection method
Subpart D
• Specific provisions on personal fall protection equipment
• Section 1910.269(g) to require compliance with new personal fall protection requirements under Subpart I
Subpart I
Industry Implications
T&D work – already primarily covered under construction industry fall protection standards
Power Plants – more flexibility to select preferred fall protection method
Personal fall protection – Work covered under Section 1910.269 already required to use personal fall arrest systems prescribed by Subpart M of construction industry standards
State Plans
2015 Federal Annual
Monitoring Evaluation (FAME)
Reports
State Plans FAME Reports
Most state OSHA programs lag behind federal OSHA
Inspection goals 14 states did not meet safety inspection goals
15 states did not meet health inspection goals
Average penalty amounts (serious violations) Federal OSHA average was $2003
10 states had average penalties below $1000
3 states had average penalties higher than federal OSHA – California, Kentucky, Wyoming
State Plans FAME Reports
Percentage of inspections that did not result in citations
Federal OSHA: 28.5%
13 states: Lower percentages
Indiana & Nevada: Less than half of the inspections produced citations
Low citation rates raise concerns about whether inspectors are targeting high-hazard workplaces
State Plans FAME Reports
Lagging Performance
High Turnover of Compliance
Officers
Insufficient Federal Funding
Recent OSHA Cases
Wal-Mart Distribution Center
January 2008: OSHA audits distribution center in Searcy, Arkansas as part of Wal-Mart’s VPP application Wal-Mart explains that it uses the Searcy PPE
assessment at its other distribution centers
February 2008: OSHA inspects distribution center in New Braunfels, Texas
May 2008: OSHA recognizes Searcy distribution center as a VPP worksite
August 2008: OSHA issues citation alleging a violation of Section 1910.132(d)(1) for failing to conduct a PPE hazard assessment at its New Braunfels distribution center
One Size Fits All?
Administrative Law Judge
Decision
Citation upheld
Judge concludes OSHA’s interpretation to
require Wal-Mart to conduct an individual
hazard assessment at the New Braunfels
distribution center was reasonable
Must defer to OSHA (Seminole Rock)
Review Commission Decision
Commissioners Rogers & Attwood affirm citations The text of the standard is silent but the
preamble states “the assessment must take into account the conditions specific to each worksite.”
Commissioner MacDougall issues dissenting opinion The standard’s requirement that an employer
“assess the workplace” does not necessitate a site-specific, walk-through survey to determine if hazards are present.
Vacated for lack of notice
Implications
Employers may not conduct one PPE
hazard assessment to be used at other
worksites
At a minimum, employers must confirm that
conditions at worksites are the same
Central Transport
Central Transport operates approximately 170 shipping terminals and service centers in the U.S.
Following an inspection at a Massachusetts location, OSHA issued citations
In the Complaint, OSHA requested order to compel “enterprise-wide abatement” for the removal of defective or unsafe powered industrial trucks from service
The employer filed a motion to strike OSHA’s request for enterprise-wide abatement
Employer’s Argument
The OSH Act does not authorize the Review Commission to grant enterprise-wide relief applicable to a worksite that OSHA has never inspected
Order for enterprise-wide relief would violate the due process rights of employers by holding them in violation of OSHA standards at worksites that OSHA never inspected
Delta Elevator ALJ decision denying OSHA’s request for enterprise-wide relief supports position
OSHA’s Arguments
The “other appropriate relief” clause under
Section 10(c) of the OSH Act grants the
Review Commission authority to order
enterprise-wide relief given the
extraordinary circumstances in this case
The employer mischaracterizes Delta
Elevator
Administrative Law Judge’s
Order
Respondent’s motion to strike Secretary’s claim for enterprise-wide abatement is premature; full discovery and a hearing is necessary
This case is distinguishable from Delta Elevator The facts are very different; Central Transport has
history of violating the same forklift standard
Delta Elevator decision followed a hearing and the judge vacated the general duty clause as inapplicable to the cited worksite
The Review Commission has authority under the “other appropriate clause” in Section 10(c) of the OSH Act to order enterprise-wide relief in appropriate cases
Industry Implications
Chilling effect on employers’ right to contest
citations
Will OSHA pursue enterprise-wide relief in
every case?
May give OSHA authority to inspect all of
employer’s locations to verify abatement;
employer at risk of receiving multiple failure
to abate citations
Delek Refining
April 2005: Delek purchases refinery in Tyler, Texas from Crown Central.
Feb 2008: OSHA initiates an inspection at refinery in Tyler and discovers that all issues in the PHAs from 1994, 1998, 2004, and 2005 were not addressed.
August 2008: OSHA issues several PSM citations
PSM Citations
Two PSM citations items concern inadequate recordkeeping that preceded the citation’s issuance by several years
Item 4: Alleges a violation of Section 1910.119(e)(5) for failing to address the findings and recommendations from several PHAs conducted by the refinery’s previous. Resolutions and actions taken must be documented.
Item 12: Alleges violation of Section 1910.119(o) by failing to properly respond to findings from PSM compliance audit. The employer must document all responses to compliance audit.
Time Barred?
“No citation may be issued under this section after the expiration of 6 months following the occurrence of any violation.” Section 9(c) of OSH Act
AKM/Volks (decision issued after ALJ decision): Employers cannot be cited for failing to record work-related injuries more that six months after the initial obligations to record the injuries attaches. Recordkeeping violations are not continuing.
Review Commission’s Decision
Commissioners Rogers and Attwood held the citations were not time-barred
The AKM/Volks decision distinguishes between “discrete record-making violations” and instances where a company continues to subject its employees to unsafe situations.
The items do not allege a “discrete record-making violation” that only occurred once.
The cited standards contain documentation requirements, but the violations require action beyond mere recordkeeping – the employer must also take corrective action.
MacDougall Dissenting
Opinion
MacDougall concluded that the citations were
time-barred
Delek should not be automatically held liable for
violations of the previous owner
Like the recordkeeping violations in AKM, the
PSM violations were not continuing violations
The PHA violations would have been immediately
apparent to OSHA
The mere failure to right a wrong does not establish a
continuing violation
AKM is not limited to recordkeeping violations
Fifth Circuit Court of Appeals
June 18, 2016: Delek files
appeal with 5th Circuit
February 29, 2016: Oral
Arguments Held
??? 2016:
5th Circuit Issues
Decision
Implications
Even after AKM, OSHA will continue to look
for ways to find continuing violations beyond
the six-month statute of limitations
Companies may be held liable for violations
of prior owner; a careful review of safety
program and history should be completed
before the acquisition
Section 1910.269/Subpart V
Update
OSHA enforcement of MAD requirements
for voltages of 72.6 to 169.0 kilovolts and
169.1 kilovolts continues to be delayed
January 1, 2017: Enforcement date
OSHA has confirmed this will be extended
IEEE 516 paper projected for September
OSHA will extend the compliance deadline to
June 2017
What to Expect in 2017
Changing Administrations
Clinton wins – what changes will we see?
Trump wins – what changes will we see?
With an agency like OSHA, does it really
matter much?
Changing Administrations
How difficult is it to “turn the ship” from an
enforcement standpoint?
Will a more “business friendly”/”compliance
assistance” oriented OSHA filter down to
Area Offices?
Who Runs the Agency?
OSHA career staff have great deal of
authority
Higher penalties are here to stay
OTS/Serious: $7000 to $12,471
Repeat/Willful: $70,000 to $124,709
Will any President pull OSHA off of
enforcement “shaming”?
Does “Shaming” Continue?
Enforcement trends
SVEP
“Enterprise-wide” liability
Injured employees as a “protected class”
Joint employment
Focus on supply chain
Secretary of Labor?
Jennifer Granholm Julian Castro Randi Weingarten
Head of OSHA?
Jordan Barab Dorothy Dougherty Deborah Berkowitz
What to Expect in 2017
Political pragmatist?
Agenda setter?
Clinton, the Pragmatist
Clinton, the Agenda Setter
Ergonomics Rulemaking?
I2P2
What to Expect in 2017
A LOT tougher to
guess
Pragmatist or agenda
setter?
He’s promised proven
“winners” – from/in
business?
Maybe Beltway
insiders?
Secretary of Labor?
Sen. Dave Perdue Sarah Palin Ben Carson
Head of OSHA?
Ed Foulke Heather MacDougall . . . Mike Rowe?
What to Expect in 2017
Certainly not more of
the same (but can he
hold the career people
back?)
Rollback of existing
standards/rules?