OSHA Law Blog

OSHA Extends Deadline for Submitting Comments on MSD Rule by 15 Days

Brad Hammock — Mon, 08 Mar 2010 11:07:23 -0500

OSHA has just announced that it is extending by 15 days the public comment period for its proposal to add a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). Those wishing to comment on the proposed rule must now do so by March 30, 2010. Four separate stakeholders had requested an extension of the comment period.

Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

This is an important rulemaking and all stakeholders are encouraged to participate in the rulemaking process.

OSHA: Employers May Require Employees to Take Flu Vaccines

Brad Hammock — Tue, 16 Feb 2010 13:54:52 -0500

Employers may order employees to take seasonal and H1N1 vaccines, the nation’s principal workplace safety and health agency has stated. OSHA offered this opinion in a letter of interpretation, published recently on the agency’s website.

The letter is addressed to Congresswoman Marcy Kaptur (D-OH), who relayed to OSHA a letter from a constituent asking whether her employer could mandate that she accept a flu shot. According to the constituent, her employer had “threatened the employees with mandatory time off” if they did not accept the flu shots.

OSHA responded, first, by reiterating its guidance that healthcare employers should offer both the seasonal and H1N1 vaccines to employees and that employees should be informed of the vaccines’ benefits. It added, however, that employers may require employees to take the vaccines, even though OSHA has no published standard containing this requirement. OSHA also provided a cautionary note: an employee who refuses to be vaccinated because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11(c) of the OSH Act, which prohibits discrimination against employees who exercise their safety and health rights.

The issue of whether employers can require employees to take flu vaccines has been controversial for both employers and employees. OSHA appears to be stepping directly into this controversy. Even though media attention over the H1N1 virus has subsided for the moment, the issue of mandatory vaccines for employees is one that likely will recur during the next flu outbreak.

While employers should be aware of OSHA’s interpretation, they also must be mindful of other laws and regulations that may be applicable to issues affecting mandatory vaccinations. Collective bargaining agreements also may be relevant. Employers should consider all of this information before adopting any vaccination policies.

OSHA Proposes to Restore MSD Column on "300 Log"

Brad Hammock — Wed, 03 Feb 2010 15:22:33 -0500

In a move sure to be viewed by some as a prelude to a new ergonomics rulemaking, OSHA has proposed adding a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). (The initial 2001 recordkeeping final rule had included an MSD column, but OSHA later deleted that column before the provision ever became effective.) The rule also proposes the same definition of “MSDs” that OSHA had included in the initial 2001 final rule.

This is an important and fast-moving rulemaking. Interested stakeholders are encouraged to review the proposal thoroughly and provide comments to the agency. The comment period ends on March 15, 2010; the agency is holding a public meeting on the proposal on March 9, 2010.

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA describes this proposed rule as a non-significant regulatory action involving only two small costs for employers. OSHA believes that:

1. employers – and specifically a human resources specialist – will be required to spend 5 minutes familiarizing themselves with the rule; and

2. employers will need to spend one additional minute than they currently spend in analyzing an injury or illness to determine whether it should be classified as an “MSD” and put into the correct column on the new recordkeeping forms.

OSHA’s action takes the agency back a decade to the end of the Clinton Administration, when OSHA completed its revised recordkeeping rule with a separate MSD column. Of course, many stakeholders will ask if this move signals a return to the other Clinton Administration rulemaking on MSDs: ergonomics. That rule was rescinded by Congress and President Bush under the Congressional Review Act. OSHA’s leadership has insisted that this rulemaking is totally separate from any ergonomics initiative and should not be interpreted as a first step to a new ergonomics rule. However matters may develop on ergonomics, this rulemaking is important in its own right as it affects – by OSHA’s own count – approximately 1.5 million workplaces around the country.

All State Plan States Have Indicated Intent to Adopt OSHA's Recordkeeping National Emphasis Program

Brad Hammock — Wed, 27 Jan 2010 09:42:40 -0500

As of January 27, 2010, OSHA’s State Plan webpage is reporting that all State Plan States have indicated an intent to adopt OSHA’s Recordkeeping National Emphasis Program (NEP). (OSHA will continually update the webpage as it gathers additional information from the State Plan States regarding adoption.) OSHA launched the NEP, effective September 30, to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. State Plan State adoption further broadens the potential scope of this significant enforcement initiative.

Of the 26 State Plan States adopting, 14 States have indicated an intent to adopt an identical NEP, according to OSHA's website. These States are: Arizona, California (adopted on 11/30/2009), Hawaii, Indiana, Kentucky, Maryland, Michigan, North Carolina, Nevada, Tennessee (adopted on 11/1/2009), Utah, Virginia, the Virgin Islands, and Vermont.

The following States have indicated that they will adopt a different recordkeeping NEP: Alaska, Connecticut, Iowa, Minnesota, New Jersey, New Mexico, New York, Oregon, Puerto Rico (adopted on 1/4/2010), South Carolina, Washington, and Wyoming.

Jackson Lewis has prepared a special report on the federal NEP and recorded (with SmartPros Ltd.) two recordkeeping seminars to assist employers in preparing for the NEP and ensuring their recordkeeping practices are fully compliant with OSHA’s rules. The first is Course 2215, OSHA’s Record-Keeping NEP: What It Is and What You Need to Do to Prepare, which explains OSHA’s Recordkeeping NEP in detail. The second is Course 2210, The OSHA Record-Keeping "Great Eight," which goes through eight key principles for OSHA recordkeeping compliance.

OSHA is determined to ascertain whether, and to what extent, injuries and illnesses are under-recorded. Employers must be prepared.

OSHA in 2010: What to Expect!

Brad Hammock — Thu, 21 Jan 2010 08:11:31 -0500

In mid-December 2009, Professor David Michaels was sworn in as the new Assistant Secretary of Labor for OSHA. Shortly after being sworn in as Assistant Secretary, Professor Michaels gave an interesting speech at the National Institute for Occupational Safety and Health (NIOSH) Going Green Workshop. The speech was entitled “Making Green Jobs Safe: Integrating Occupational Safety and Health into Green and Sustainability,” and provides a good glimpse as to where he would like to take OSHA in 2010 and beyond.

Professor Michaels’ speech touched on many important issues with respect to occupational safety and health. In particular, he emphasized the need for workers to be heavily involved in workplace safety, to know the hazards they may face, and to work with their employers to identify and correct hazards in the workplace. “To get us up to date and move into a safer, healthier future, it’s . . . clear that workers must have a stronger voice in workplace safety than they have now.” Professor Michaels has always been a strong proponent of safety and health management systems, whereby employers and employees deal proactively with workplace hazards through management leadership, employee participation, hazard identification and control, and system evaluation. His speech certainly suggests that he will continue to push this as head of OSHA.

Professor Michaels also mentioned OSHA’s “substantial” budget increase, which will “significantly increase the number of inspectors” OSHA puts in the field and the need to update many of OSHA’s outdated standards. Translation: the Agency must do everything it can to increase enforcement and engage in smart rulemaking to “to create good standards.”

So what does all this boil down to as a practical matter? In 2010, employers should expect OSHA to continue to push forward aggressively on enforcement and regulatory initiatives. Some specific initiatives to watch out for include a:

Final Cranes and Derricks in Construction rule. OSHA staff have been working diligently to finalize a rule addressing hazards associated with crane operations. If the rule is finalized as proposed, it would be one of the largest overhauls of the nation’s safety regulations in the Agency’s history. OSHA’s existing rules for cranes in construction take up only a few pages of the Code of Federal Regulations with several cross-references to outdated national consensus standards. The proposed rule and preamble, in contrast, fill out 250 densely packed pages of the Federal Register. The proposal contains over 40 separate sections of detailed requirements in such areas as crane assembly, crane operation, inspections, and operator training and certification.

Crystalline Silica Proposed Rule. Crystalline silica is ubiquitous, comprising a substantial percentage of the Earth’s crust. OSHA has evidence that exposure to crystalline silica at the current permissible exposure limit (PEL) causes silicosis and lung cancer. It has been seeking to comprehensively regulate the substance – and reduce the PEL – for over a decade and the Agency seems poised to take that next step in 2010. Expect a proposed rule on silica to be released sometime this year, as OSHA pushes forward on this longstanding initiative.

New Approach on Ergonomics. For the last year, various administration officials have stressed the importance of OSHA dealing with WMSDs and ergonomics. WMSDs still comprise a significant percentage of workplace injuries every year. WMSDs occur in every industry and in every job throughout the country.

Almost a decade ago, the Clinton Administration finalized an ergonomics standard that would have required all general industry employers to implement an ergonomics program, including the elements of management commitment, employee participation, hazard assessment and control, and medical management. It also would have mandated “work restriction protection,” which would have required that certain pay and benefits for employees be maintained for periods of time they are out of work due to a work-related injury.

Congress and President Bush disapproved of the final standard, however, and in 2001 it was rescinded under the Congressional Review Act (CRA). As a result, OSHA is prohibited from promulgating an ergonomics standard that is “substantially the same” as the rescinded standard. No one knows precisely what those words mean, but they are sure to be hotly debated over the next several months.

OSHA cannot keep avoiding the issue of ergonomics and likely will start to take on the issue in 2010 of what it can and cannot do under the CRA. It will also likely increase ergonomics enforcement under the General Duty Clause.

No matter what happens in 2010, we will keep you up-to-date in this space on the latest OSHA developments.

OSHA: A Review of 2009

Brad Hammock — Tue, 19 Jan 2010 07:00:00 -0500

In 2009, OSHA emerged from the regulatory and enforcement shell that had shrouded it during the eight years of the Bush Administration. Once confirmed, Secretary of Labor Hilda Solis announced that a “new Sheriff” was in town, who would refocus the Department of Labor – including OSHA – on tough enforcement and aggressive rulemaking. In both areas, OSHA delivered on Secretary Solis’s promise.

OSHA Increases Enforcement

Many critics of OSHA during the Bush Administration focused on the seeming “emphasis” on cooperative programs and compliance assistance, at the expense of strong enforcement. In response, the Department of Labor announced in 2009 the hiring of hundreds of additional compliance officers (CSHOs) to refocus the Agency on what many believe is its core mission – enforcing occupational safety and health standards. It also initiated or revamped several new National Emphasis Programs (NEPs) to further focus CSHOs on certain safety and health issues and hazards:

Chemical Facilities National Emphasis Program. OSHA initiated a new NEP to focus enforcement resources on process safety management (PSM) hazards in chemical facilities across the country. The NEP, effective July 27, 2009, is billed as a “new approach for inspecting PSM covered facilities” and “allows for a greater number of inspections by better allocation of OSHA’s resources.” In its instructions to compliance officers regarding the scope of inspections, OSHA emphasizes implementation of the PSM standard over documentation. Paper programs are not enough and OSHA will make sure that employers are fully implementing their PSM programs.

Recordkeeping National Emphasis Program. In the fall of 2009, OSHA launched its long-awaited Recordkeeping NEP. The NEP subjects employers in certain industries to comprehensive injury and illness records reviews. The purpose of the NEP is to ascertain whether, and to what extent, employers are under-recording injuries and illnesses at the worksite. OSHA cites several recent studies in the NEP asserting under-recording by employers on OSHA 300 logs. The NEP is designed to “identify and correct under-recorded and incorrectly recorded cases.” Employers subjected to an NEP inspection will face what are likely to be the most comprehensive inspections in the history of the Agency, with detailed records reviews, interviews of numerous employees, and an analysis of employer safety incentive programs and the effect of these programs on the reporting of injuries and illnesses.

Facilities that Manufacture Food Flavorings Containing Diacetyl National Emphasis Program. After focusing for years on the hazards of occupational exposure to diacetyl in microwave popcorn production, OSHA finally shifted its focus with respect to diacetyl to employers who manufacture food flavorings containing diacetyl. OSHA cites a Centers for Disease Control (CDC) study finding seven cases of bronchiolitis obliterans – a lung disease associated with exposure to diacetyl – in employees working in facilities where flavorings are manufactured. As part of the NEP, OSHA identifies eighty three facilities for inspection and provides detailed guidance for compliance officers to determine the extent to which these facilities are in overall compliance with their obligations.

Perhaps the most eagerly anticipated – and discussed – enforcement initiative was not an NEP at all, but was related to OSHA enforcement procedures for high to very high occupational exposure to the 2009 H1N1 virus. H1N1 captivated the world this past year, and OSHA spent significant resources addressing the occupational safety and health side of the issue. In the spring and summer of 2009, OSHA responded to the H1N1 outbreak by reissuing and repackaging guidance documents on pandemic influenza that had been previously developed. In November, however, OSHA went further and announced inspection procedures for certain high-hazard H1N1 workplaces, including hospitals, emergency medical centers, doctors’ and dental offices and clinics.

A More Active Regulatory Agenda

In 2009, OSHA also set a course for more activity in the rulemaking arena. As with enforcement, many stakeholders were critical of the Bush Administration’s perceived lack of investment in OSHA’s regulatory agenda. The two most significant regulatory accomplishments during the Bush Administration were the final Hexavalent Chromium rule and the final Employer Payment for PPE rule. Many stakeholders, however, argued that even these accomplishments were essentially forced on the Agency by the federal courts. Whether this is true or not, the first year of the Obama Administration saw the announcement of several new regulatory initiatives and what is even more stunning is that these initiatives were announced without a permanent political head of the Agency.

In 2009, OSHA announced new rulemakings for combustible dust hazards and airborne infectious diseases. OSHA also announced that it would revisit in a new rulemaking the definition of work-related musculoskeletal disorders (WMSDs) and how WMSDs should be recorded on OSHA 300 logs. This year OSHA also published its proposed rule to update its hazard communication standard. The hazard communication proposal is one of the most significant OSHA rulemakings in over a decade. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Finally, in 2009 OSHA made significant progress on its Cranes and Derricks in Construction proposed rule. OSHA’s proposal was over five years in the making. It was developed by the Agency through negotiated rulemaking, whereby representatives of employers and organized labor work together with OSHA to develop a draft rule. Consensus was reached by the negotiated rulemaking committee in 2004. OSHA held public hearings on the proposed rule in 2009 and Agency staff have been busy reviewing comments received with the goal of issuing a final rule in 2010.

All of this in just over 11 months. And yet, this is likely just the beginning for OSHA as 2010 is expected to bring greater enforcement and regulation.

(More to come on what to expect in 2010 in the next blog post.)

Concussions in Professional Athletes: Is There a Role for OSHA?

Brad Hammock — Tue, 05 Jan 2010 13:44:26 -0500

Over the past three months, the media has been fixated on concussions in professional football players. Some of the National Football League’s top players – Ben Roethlisberger, Kurt Warner, Clinton Portis – have recently been sidelined for concussions sustained on the playing field. After Ben Roethlisberger of the Pittsburgh Steelers was held out for an important game against division rival Baltimore because he was experiencing exercise-induced headaches, Hines Ward, the team’s all-time leading receiver, suggested to the media that Roethlisberger should have played in the game, even if that meant lying to the team’s medical staff in order to obtain clearance.

As the media has focused on the issue of concussions in professional athletes, an interesting question has been raised: where is OSHA in all this? While some professional athletes may be “independent contractors” and not covered by the Occupational Safety and Health Act (OSH Act), many most assuredly are “employees” and their employers must take steps to protect them. The failure of employers to respond on their own to workplace injuries and illnesses was one of the key reasons that Congress passed the OSH Act in 1970.

In order for OSHA to regulate a hazardous condition in the workplace, it must first determine whether a “significant risk” of workplace injury or death exists from exposure to the hazardous condition. The risk of this injury or death is considered over a 45-year working lifetime under the OSH Act. It would be interesting for OSHA to examine – in all professional sports – what is the risk of developing a concussion or other serious head injury assuming a professional athlete were to be exposed to hazards over a 45-year period. The numbers could be eye-opening.

OSHA, of course, has been silent on the issue of concussions in professional sports. Perhaps the issue of injuries in professional athletes is too far outside OSHA’s comfort zone, believing its limited resources can be better used elsewhere. It is legitimate to question, however, the extent to which OSHA should be involved in this issue or whether Congress needs to create a new “Sports Safety and Health Administration” or “SSHA” to mandate athlete safety and health.

Click here for a Special Report analyzing concussions in athletes and steps professional sports franchises, colleges, universities, and public school systems across the country can take to address concussion management.

OSHA Announces Informal Public Hearings on its Hazard Communication Proposed Rule

Brad Hammock — Wed, 30 Dec 2009 09:17:56 -0500

In a December 29, 2009 Federal Register notice, OSHA has announced three informal public hearings on its proposal to update its hazard communication standard. The hearings will begin at 9:30 am on the following dates:

March 2, 2010 in Washington, DC;
March 31, 2010 in Pittsburgh, PA; and
April 13, 2010 in Los Angeles, CA.

OSHA’s hazard communication proposal is one of the most significant rulemaking efforts in over a decade. Click here for a full description of the proposal. OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Because of the broad scope of the proposed rule, all employers are encouraged to familiarize themselves with the requirements and participate in the informal public hearings. OSHA has announced that requests to appear at the hearings must be submitted by January 18, 2010, and testimony (if expected to be over 10 minutes in length) and documentary evidence must be submitted by February 1, 2010.

OSHA Releases Fall Regulatory Agenda: Focus is on Musculoskeletal Disorders and Airborne Infectious Diseases

Brad Hammock — Thu, 10 Dec 2009 12:07:07 -0500

OSHA has released its long-awaited Fall Regulatory Agenda. The Regulatory Agenda lists the major rulemaking initiatives that the agency will be pursuing over the next 12 months. The Agenda also provides a snapshot into the agency's priorities, as we enter the second year of the administration of President Obama.

Longstanding Rulemakings Remain on the Agenda

Most of the rulemaking items that started under President Clinton or Bush remain on OSHA's regulatory agenda. OSHA continues to push forward with a silica rulemaking, which was initiated in the 1990s. OSHA predicts that it will publish a proposed rule comprehensively regulating exposure to silica in the workplace in July, 2010. Other rulemakings that continue to receive OSHA's attention include rulemakings on diacetyl, hazard communication, combustible dust, and tree care operations.

OSHA does announce in this regulatory agenda that it is abandoning its regulatory efforts to update its explosives rule. This rulemaking had engendered some controversy during the Bush Administration over its proposed provisions related to storage of ammunition.

New Rulemakings Added

OSHA is also adding some new regulatory actions that are sure to be controversial. First, OSHA is revisiting the issue of the definition of work-related musculoskeletal disorder (WMSD) and the need to identify specifically WMSDs in a separate recordkeeping column. When OSHA developed its revised recordkeeping rule in the late 1990s, OSHA initially required employers to identify WMSDs separately on OSHA 300 logs. This requirement, however, was abandoned by the Bush Administration in a follow-up regulatory initiative. OSHA is now looking once again at the issue and it may reignite some of the controversy associated with past OSHA efforts related to WMSDs and ergonomics.

Second, OSHA is seeking information from the public on the need for a federal Aerosol Infectious Diseases standard. Specifically, "OSHA is considering the need for a standard to ensure that employers establish a comprehensive infection control program and control measures to protect employees from airborne infectious disease exposures to pathogens that can cause significant disease." California recently adopted its own aerosol transmissible disease standard and this rulemaking initiative suggests that federal OSHA is exploring the need for such a standard nationwide.

OSHA continues to be active on both regulatory and enforcement initiatives. We will continue to keep you apprised in this space on the latest OSHA developments.

New OSHA Recordkeeping Courses Available

Brad Hammock — Tue, 08 Dec 2009 17:10:40 -0500

Jackson Lewis and SmartPros Ltd. are pleased to announce the availability of two OSHA recordkeeping courses. The first is Course 2215, OSHA’s Record-Keeping NEP: What It Is and What You Need to Do to Prepare, which explains OSHA’s Recordkeeping NEP in detail. The second is Course 2210, The OSHA Record-Keeping "Great Eight," which goes through eight key principles for OSHA recordkeeping compliance.

In addition, click here to view a recent interview on occupational safety and health issues prepared and produced by the Financial Management Network (FMN). The interview covers H1N1, hazard communication, safety and health management systems, OSHA's Recordkeeping NEP, and other hot topics.

Pandemic Protection Act Adds to Growing Congressional Concern over H1N1

Brad Hammock — Wed, 25 Nov 2009 13:34:13 -0500

Employers may be required to provide seven days of paid sick time per year under a bill introduced in Congress. The measure, titled the Pandemic Protection for Workers, Families, and Businesses Act (H.R. 4092/S. 2790), was introduced by Representative Rosa DeLauro (D-Conn.) in the House and Senator Christopher Dodd (D-Conn.) in the Senate on the heels of another emergency paid sick leave bill proposed earlier. If passed, the Pandemic Protection Act would be a temporary law that expires two years from enactment.

Under the proposal, employees would be entitled to paid sick time off due to a contagious illness or to care for a child with a contagious illness. It seeks to contain the spread of H1N1 and other influenza strains by ensuring sick employees can stay home from work without financial sacrifice from loss of work.

The Pandemic Protection Act would require most employers with 15 or more employees to provide full-time employees with seven days of paid sick time to be used for the following reasons:

The employee or his or her child is experiencing symptoms of a contagious illness, such as the 2009 H1N1 virus or other influenza-like illness, including time off for medical and preventive care;
A health authority or health care provider has determined that the employee’s presence at work or the child’s presence in the community would expose others to a contagious illness; or
The employee’s worksite or the child’s school, child care or early childhood program has been closed due to a contagious influenza-like illness.

Part-time employees would be entitled to a pro-rata share of paid sick days. Employees must have worked for their employer for 30 days before they are covered under the bill.

If the Act becomes law, employers’ existing paid time off (PTO) policies may need to be modified. According to the bill, employers who already provide seven days of paid sick leave that “may be used for the same purposes and under the same conditions as the purposes and conditions [covered in the legislation] shall not be required to provide additional paid sick time…” It is unclear what effect the legislation would have on PTO plans that allot a certain amount of time off without specifying the permitted purposes of use. The proposal also leaves unanswered the question whether an employee who has exhausted his or her PTO allotment would be entitled to paid leave for the reasons in the bill.

Regardless of the outcome of this paid sick leave measure, employers should develop and implement contingency plans to address widespread absences due to pandemic illness in the workplace.

Carrie Jabinsky drafted this blog post.

Attention on Under-recording of Injuries and Illnesses Grows with Release of GAO Report

Brad Hammock — Thu, 19 Nov 2009 13:20:23 -0500

The Government Accountability Office (GAO) has released an analysis of OSHA's efforts to ensure that work-related injuries and illnesses are properly recorded by employers. Members of Congress had requested that the GAO determine (1) whether DOL verifies that employers are accurately recording workers' injuries and illnesses and, if so, the adequacy of these efforts, and (2) what factors may affect the accuracy of employers' injury and illness records. The GAO study is another piece of the "under-recording puzzle" that is the focus of great attention by OSHA.

The GAO concludes that there are several deficiencies in OSHA's recordkeeping audit verification program in terms of the ability of the audits to determine if employers are accurately recording injuries and illnesses that occur at the worksite:

OSHA does not always require inspectors to interview workers about injuries and illnesses.
Many workers are no longer employed at the worksite and therefore cannot be interviewed.
OSHA does not review the accuracy of injury and illness records for worksites in eight high hazard industries because it has not updated the codes used to identify the industries in its recordkeeping rule.

The GAO also identifies disincentives to workers reporting injuries and illnesses, including fear of job loss or other disciplinary action and fear of jeopardizing rewards based on having low injury and illness rates. The GAO also surveys U.S. health practitioners and concludes that over a third of them have been subjected to pressure from employers or workers to provide insufficient medical treatment to avoid the need to record injuries or illnesses.

In response to its findings, the GAO makes four recommendations to OSHA:

Require inspectors to interview workers during records audits and substitute other workers when those initially selected are unavailable.
Minimize the time between the date injuries and illnesses are recorded by employers and the date they are audited.
Update the list of high hazard industries used to select worksites for records audits.
Increase education and training to help employers better understand the recordkeeping requirements.

OSHA agreed with all the recommendations. It stated that it would require inspectors to interview employees during records audits and develop policies to conduct audits in a timely fashion. It also stated that it would pursue rulemaking to update the industry coverage of the recordkeeping rule from SIC codes to NAICS codes. Finally, it committed to supplement its current outreach efforts on recordkeeping compliance.

Of course, OSHA has also implemented its Recordkeeping NEP, which will focus OSHA enforcement resources on investigating the extent to which employers are under-recording injuries and illnesses.

Employers must take steps now to ensure that they have been, and are, accurately recording injuries and illnesses that occur at work.

OSHA Recordkeeping Best Practices

Brad Hammock — Thu, 12 Nov 2009 09:40:24 -0500

OSHA's Recordkeeping National Emphasis Program (NEP) has been in effect for over a month and employers should be taking steps now to review their records and prepare for an NEP inspection.

Click here for an article that can assist in the preparation process. "Are You Prepared for OSHA's Recordkeeping National Emphasis Program?," which just appeared in Workforce Management, describes the NEP and some recordkeeping best practices. Implementation of these best practices can help ensure that employers are fully compliant with their OSHA recordkeeping obligations.

Temporary Paid Sick Leave Legislation Introduced to Deal with H1N1, Other Illnesses

Brad Hammock — Thu, 05 Nov 2009 11:10:18 -0500

As concern over H1N1 and influenza-related illnesses continues to spread, legislation that would require employers to provide up to five days of paid sick leave per year to workers afflicted with influenza or other, similar contagious illness has been introduced in the U.S. House of Representatives. The bill applies to employers with 15 or more employees where workers comply with the employer’s directive to go home or stay home from work because of a contagious illness. The proposed legislation, titled the Emergency Influenza Containment Act (H.R. 3991), was introduced by House Education and Labor Committee leader Rep. George Miller (D-Cal.) and Workforce Protections Subcommittee leader Rep. Lynn Woolsey (D-Cal.).

If passed, the bill would apply to both full time and part time employees who are “directed” or “advised” to leave work or not come in “because the employer believes the employee has symptoms of a contagious illness, or has been in close contact with an individual who has symptoms of a contagious illness.” Contagious illness is defined in the legislation and includes “influenza-like-illnesses,” such as H1N1.

Covered employees would be entitled to an amount of paid sick leave calculated based on the employee's regular rate of pay and scheduled hours of work. Small employers and companies that already provide five or more paid sick days per year would be exempt from the bill’s requirements. The measure also would prohibit employers from firing, disciplining, or retaliating against workers who comply with the employer’s directive to stay home or not come to work.

The Emergency Influenza Containment Act may move quickly as a result of mounting concerns regarding influenza-related illnesses. The House Education and Labor Committee is expected to hold a hearing on the legislation during the week of November 16. The Emergency Influenza Containment Act would expire two years from enactment.

Carrie Jabinsky drafted this post.

OSHA to Issue Compliance Directive to Enforce CDC Recommendations for H1N1 in Healthcare Institutions

Brad Hammock — Fri, 23 Oct 2009 17:49:24 -0500

Marking the federal government’s first move from a “recommendation” to a “requirement” posture in dealing with H1N1, the Occupational Safety and Health Administration (OSHA) has announced that it will issue a compliance directive to enforce the Centers for Disease Control and Prevention’s Interim Guidance on Infection Control Measures for 2009 H1N1 Influenza in Healthcare Settings, Including Protection of Healthcare Personnel.

The OSHA Directive will prescribe uniform procedures governing OSHA inspections of healthcare institutions for occupational exposure to H1N1 flu. Covered healthcare settings include acute care hospitals, nursing homes, skilled nursing facilities, physicians’ offices, urgent care centers, outpatient clinics, and home healthcare agencies. OSHA will conduct inspections based upon employee complaints.

While it is unclear how much of the CDC Guidance will be incorporated into OSHA’s Directive and what level of compliance will be required, healthcare employers should make reasonable efforts to ensure their policies, procedures, forms, and postings conform with the CDC’s recommendations, including:

Hierarchy of Controls: The CDC recommends that healthcare facilities use a “hierarchy of controls” to prevent H1N1 exposure and transmission including, in descending order of preference: (1) elimination of potential exposures, such as minimizing outpatient visits for patients with mild influenza-like symptoms, and denying access to visitors with suspected or confirmed influenza; (2) engineering controls, including partitions for triage areas and other public spaces; (3) administrative controls, including providing vaccinations for employees, ensuring that ill employees stay home, and enforcing respiratory hygiene and cough etiquette; and (4) personal protective equipment (PPE), such as gloves and respirators.
N95 Respirators/Facemasks: The CDC recommends use of respiratory protection “at least as protective as a fit-tested disposable N95 respirator for healthcare personnel who are in close contact with patients with suspected or confirmed 2009 H1N1 influenza.” Close contact is defined as working within six feet of an infected patient. Acknowledging that some facilities face a supply shortage of this equipment, the CDC advises that “special care … be taken to ensure that respirators are available for situations where respiratory protection is most important, such as performance of aerosol-generating procedures on patients with suspected or confirmed 2009 H1N1 influenza or provision of care to patients with other infections for which respiratory protection is strongly indicated (e.g., tuberculosis).” This may require prioritizing resources. The CDC recommends that facemasks be chosen over no protection.

For its part, OSHA suggests that if employers make a good faith effort to obtain N95 respirators, but are unable to do so for supply reasons, they will not be cited, so long as they are taking other appropriate protective measures. What level of compliance OSHA will require with respect to these other recommended protective measures — such as screening for respiratory illnesses — is not clear at this time.

Beyond efforts to implement policies and procedures that comply with the CDC Guidance, healthcare employers must consider how the recommendations interact with their legal obligations under federal and state disability, leave, privacy and other laws. The Equal Employment Opportunity Commission, for example, has published technical guidance detailing employers’ obligations under the Americans with Disabilities Act with respect to H1N1.

Mei Fung So prepared this blog post.

OSHA Proposes Major Changes to its Hazard Communication Standard

Brad Hammock — Thu, 15 Oct 2009 16:50:45 -0500

In one of the most significant rulemaking efforts in over a decade, OSHA is proposing to revise its hazard communication standard to align it with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). If finalized, the rule would affect over 5 million business establishments across the country and potentially over 120 million employees. Over 40 million employees would need to be trained on hazard communication under the proposal. OSHA estimates the annualized compliance costs will be almost $100 million for employers. Annualized benefits are estimated to be approximately $850 million.

Because of the broad scope of the proposed rule, all employers are encouraged to familiarize themselves with the requirements and participate in the rulemaking process. Comments on the proposal must be submitted to OSHA by December 29, 2009.

Attached is a Special Report on the proposed rule that summarizes its key provisions.

OSHA to Issue Compliance Directive for H1N1 in Healthcare

Brad Hammock — Wed, 14 Oct 2009 23:21:23 -0500

Acting Assistant Secretary of OSHA Jordan Barab issued a statement today announcing a soon-to-be-issued compliance directive to guide agency inspections for H1N1 in healthcare facilities. Click here to view the statement.

We will keep you posted in this space as the compliance directive is developed.

OSHA's Recordkeeping National Emphasis Program

Brad Hammock — Mon, 05 Oct 2009 14:11:11 -0500

OSHA has launched its long-awaited Recordkeeping National Emphasis Program (NEP). Effective September 30, the NEP will subject employers in certain industries to comprehensive injury and illness records reviews. Employers in the targeted industries should take time now to review their recordkeeping logs and practices to prepare for an NEP inspection.

Here is a special report on the NEP, including a description of its scope, the conduct of inspections, and the treatment of musculoskeletal disorders under the program.

OSHA Has No Authority to Ban the Use of Hazardous Substances?

Brad Hammock — Fri, 02 Oct 2009 17:45:33 -0500

OSHA has declared that it lacks the congressional authority to ban the use of hazardous substances. OSHA made this statement in a letter of interpretation, published on the agency’s website, responding to a question specifically related to OSHA’s ability to ban hexavalent chromium in the workplace. OSHA agrees that “product substitution” is the best solution to eliminating the hazards from hexavalent chromium. However, the agency rejects the notion that it can ban its use or the use of any hazardous substance. According to OSHA, the authority to ban the use of hazardous materials has been delegated to the U.S. Environmental Protection Agency (EPA).

OSHA’s authority to mandate employers’ adherence to safe practices is provided by the Occupational Safety and Health Act of 1970 (OSH Act). While the OSH Act does not specifically allow OSHA to ban the use of hazardous substances, the agency has always taken a broad view of its regulatory authority. Thus, if banning the use of a hazardous substance were “reasonably necessary and appropriate” to provide a safe work environment, it could be argued that OSHA would have the authority to institute the workplace ban. However, the agency seems to have foreclosed that argument with its latest statement.

OSHA’s position is not simply of theoretical interest. It could be very important in upcoming OSHA regulatory actions. For example, the agency is preparing a proposal to regulate silica exposure comprehensively in the workplace. Many stakeholders have called for OSHA to ban the use of silica in abrasive blasting operations. This latest declaration from the agency would appear to take this possible regulatory approach off the table. It also could be important in OSHA’s diacetyl rulemaking, where product substitution is a significant issue.

OSHA Starts Recordkeeping National Emphasis Program

Brad Hammock — Fri, 02 Oct 2009 08:06:09 -0500

OSHA has released its much anticipated recordkeeping National Emphasis Program (NEP). It became effective September 30. Click here to see the NEP.

We will be reviewing the document carefully and pass along to you the key aspects of the program.