OSHA Law Blog

OSHA Launches Temporary Worker Initiative

Nickole Winnett — Wed, 15 May 2013 17:05:49 -0500

OSHA recently launched an initiative that focuses on protecting temporary employees from recognized workplace hazards. Under this initiative, OSHA is directing all OSHA compliance officers to assess whether employers who use temporary workers are complying with their responsibilities under the Occupational Safety and Health Act of 1970. For purposes of this initiative, temporary workers are defined as all employees supplied to a host employer and paid by a staffing agency.

As part of their inspections, OSHA compliance officers will determine whether any employees are temporary workers and whether any of the identified temporary employees are exposed to a violative condition. They also will assess, by records review and interviews, whether temporary workers received appropriate training in a language and vocabulary they can understand. OSHA compliance officers will pay particular attention to whether temporary workers are trained in how to protect themselves from serious hazards, such as wearing appropriate protective equipment when working with hazardous chemicals and the lockout/tagout procedures and protections.

OSHA compliance officers also will be required to document the name of the temporary workers’ staffing agency, the agency’s location, the supervisory structure of both the host employer and staffing agency, and the extent to which the temporary workers are being supervised on a day-to-day basis by either the host employer or the staffing agency.

The Heat is On: What Employers Can Do to Protect Employees from Heat-Related Illness

Nickole Winnett — Thu, 02 May 2013 07:08:36 -0500

As a cold winter finally comes to an end, many of us look forward to summertime warmth. But while sun and heat may make for a fun day at the beach, they can spell danger for workers who are exposed to soaring temperatures and a rising heat index. According to the Occupational Safety and Health Administration (“OSHA”), thousands of workers in the United States get sick from excessive heat exposure while working outdoors each year and more than 30 workers died in 2012 from heat-related illnesses.

Although OSHA has no heat illness prevention standard, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (“OSH Act”), known as the General Duty Clause, requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. That includes protecting them from heat stroke and other serious heat-related illness. Of the “State-plan” states running their own safety programs under agreements with OSHA, only California and Washington currently have heat-related illness prevention standards. However, other State-plan states also have general duty clauses in their statutes which may be invoked to address these issues.

The dangers associated with excessive heat exposure are real. Employers should evaluate conditions at their worksites and take steps to prevent heat-related illness among their workers. OSHA has resources to help employers and employees stay safe when working in high-temperature and high-humidity conditions. They are available on OSHA’s website at www.osha.gov/SLTC/heatillness/index.html.

In evaluating worksite conditions, employers should keep in mind that employees required to engage in intense or continuous physical exertion, or who are exposed to high temperatures and humidity or direct sunlight may be susceptible to heat-related illness. Employees who are required to wear heavy or bulky protective clothing or equipment also may be susceptible. In addition, employees who have not previously worked outdoors in high temperature conditions generally are more at risk because they have not built up a tolerance to hot conditions.

Two of the most serious heat-related illnesses are heat stroke and heat exhaustion. Both are dangerous illnesses that could result in death or hospitalization of the worker.

Heat stroke occurs when the body’s way of cooling itself fails and body temperature rises above 104°F. The signs and symptoms of heat stroke are a high body temperature, red or hot skin, confusion, fainting and/or convulsions. If a worker is experiencing heat stroke, employers should call 911 and move the worker to a shady or cool area immediately. Employers also should remove as much of the affected worker’s clothing as possible and attempt to cool down the worker by placing cold, wet towels or ice all over the body
Heat exhaustion occurs when body temperature rises above 100.4°F. The signs and symptoms of heat exhaustion are headache, nausea, dizziness, weakness, irritability, confusion, thirst, and heavy sweating. If a worker is experiencing heat exhaustion, employers should move the worker to a shady or cool area immediately. Employers also should remove the affected worker’s shoes, socks, and other unnecessary clothing, apply a cold compress to the head, neck and face, and give the worker cool water to drink. If symptoms persist or get worse, employers should call 911.

Employers should consider implementing some of the following measures, OSHA suggests, to reduce heat-related illness among their employees:

Provide air-conditioned or shaded areas close to the work area and schedule frequent rest breaks.
Provide workers with plenty of cool water in convenient, visible locations close to the work area.
Encourage and remind workers to drink water before they become thirsty and about every 15 minutes.
Allow workers to get used to heat conditions by gradually increasing exposure over a five-day work period and by implementing more frequent breaks during the first week of work in those conditions.
Monitor weather reports daily and reschedule jobs with high heat exposure to cooler times of the day.
Encourage employees to wear or provide employees with light-colored and permeable clothing.
Monitor workers for signs and symptoms of heat exposure and encourage employees to report symptoms of any heat-related illnesses.
Train workers and supervisors about the hazards leading to heat stress and ways to prevent them.
Implement an emergency plan and know what to do if someone is experiencing symptoms of a heat-related illness.

By limiting employees’ time in the heat and implementing safe work practices, employers can help prevent heat-related illness and reduce the chances of receiving a General Duty Clause citation.

Please contact a member of the Jackson Lewis Workplace Safety and Health practice, Brad Hammock, HammockB@jacksonlewis.com, Nickole Winnett, Nickole.Winnett@jacksonlewis.com, Partner and Associate, respectively, or the Jackson Lewis attorney with whom you regularly work, if you would like assistance.

Offshore Oil and Gas Worker Whistleblower Protection Act of 2013 Introduced Into the House

Nickole Winnett — Mon, 29 Apr 2013 07:35:58 -0500

Representative George Miller (D-CA) recently reintroduced a bill (H.R. 1649) that would provide whistleblower protections to certain workers in the offshore oil and gas industry. The bill was first introduced in 2010 and again in 2011.

The bill would prohibit employers from terminating, or otherwise discriminating against any employee who:

Provided, caused to be provided, or is about to provide to the employer or state or federal officials information relating to what the employee reasonably believes to be a violation of the Outer Continental Shelf Lands Act (“the Act”);
Testified or is about to testify before Congress or in another proceeding concerning violations of the Act;
Participated or is about to participate in a hearing before Congress or in another proceeding concerning violations of the Act;
Objected to or refused to participate in any activity, policy, practice, or assigned task that the employee reasonable believes to be a violation of the Act;
Reported an unsafe condition, illness, injury, or information regarding the adequacy of any oil spill response plan to the employer or to a state or federal official; or
Refused to perform certain job duties if the employee has a “good faith belief” that the duties could result in injury or impairment of health of any employee, or could cause an oil spill. The bill defines a “good faith belief” as such that a reasonable person under circumstances confronting the employee would conclude that there is a hazard.

The bill would permit employees who believe they have been terminated or discriminated against for a protected activity to file a complaint with the Secretary of Labor (“Secretary”) within 180 days after the discriminatory act occurred, or 180 days after the date that the employee “knows or should reasonably have known” that the discriminatory act occurred.

The bill directs the Secretary to conduct an investigation of any complaint filed and determine whether there is reasonable cause to believe that the complaint has merit. If an employer can provide “clear and convincing” evidence that it would have taken the same action toward the employee regardless of any protected activity, then the investigation will be dismissed and relief will not be granted. The Secretary may only find a violation under this anti-retaliation provision if the complainant demonstrates that the protected activity was a “contributing factor” in the adverse decision.

Once the Secretary issues findings, the employer or complainant may file objections and request a hearing on the record before an administrative law judge (“ALJ”) of the Department of Labor. An administrative appeal of the ALJ’s decision may be requested with the Administrative Review Board and any decision by the ARB will be considered a final agency action appealable to the appropriate federal appellate court.

If an employer is found to have wrongly terminated or discriminated against an employee, then the employee would be eligible for reinstatement to the job, back pay, and compensatory damages. The employer would also be liable for attorney fees.

Finally, the bill provides that if a final decision has not been issued within 330 days, then the employee has the right to file a lawsuit in federal district court with an opportunity for a jury trial. The bill also permits the Secretary to file a lawsuit in federal district court if any party has not complied with its final decision.

OSHA Clarifies that Workers May Authorize a Union or Community Organization to Act as Their Representative

Nickole Winnett — Wed, 17 Apr 2013 08:38:11 -0500

The Occupational Safety and Health Administration (“OSHA”) released a new interpretation letter on April 5, 2013, clarifying that non-union employees may select a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections of their employer’s worksite. In reaching this conclusion, OSHA concluded that language in Section 8(e), 29 U.S.C. § 657(e), of the Occupational Safety and Health Act (“OSH Act”) authorizes participation in the walk-around portion of an OSHA inspection by a person affiliated with a union without a collective bargaining agreement or with a community representative so long as the individual has been authorized by the employees to serve as their representative.

However, OSHA recognized that pursuant to 29 C.F.R. § 1903.8, the OSHA compliance officer may exercise his or her discretion in who can participate in workplace inspections in order to manage the inspection effectively. While OSHA recognized that its regulations acknowledge that most employee representatives will be employees of the employer, it concluded that there may be times when the presence of an employee representative who is not employed by the employer will be allowed to participate in a workplace inspection. Specifically, the regulations allow an OSHA compliance officer, for “good cause,” to be accompanied by a third-party who is not an employee, such as “an industrial hygienist or a safety engineer” when, in the judgment of the OSHA compliance officer, such a representative is “reasonably necessary to the conduct of an effective and thorough physical inspection.” 29 C.F.R. § 1903.8(c). In OSHA’s view, representatives are “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection. OSHA noted that a non-employee representative may make a positive contribution to an inspection if, for example, he or she has experience and skill in evaluating similar working condition, or when he or she is fluent in the language of non-English speaking workers and would facilitate useful interactions between the compliance officer and the workers.

Citing confusion, OSHA withdrew an earlier 2003 interpretation letter that rejected the right of a non-employee who files an OSHA complaint to participate in the resulting OSHA inspection. OSHA noted that the 2003 interpretation letter was distinguishable because it did not address the right of workers to designate a representative of their choice.

OSHA's Region III Targeting Noise in the Workplace

Brad Hammock — Mon, 15 Apr 2013 08:59:59 -0500

OSHA’s Region III is targeting noise exposure in the workplace, as part of a Regional Emphasis Program. Federal OSHA states located in Region III include Delaware, the District of Columbia, and Pennsylvania. According to OSHA, noise “induced hearing loss is one of the most common occupational diseases and the second most self-reported occupational illness or injury.”

Under the Emphasis Program, OSHA will be conducting inspections in the following industries, selected for inclusion based upon agency data showing frequent citations in these industries for OSHA’s occupational noise standard:

3089/Plastics Products, Not Elsewhere Classified
3281/Cut Stone and Stone Products
2448/Wood Pallets and Skids
2421/Sawmills and Planing Mills, General
3441/Fabricated Structural Metal
5093/Scrap and Waste Materials
3499/Fabricated Metal Products, Not Elsewhere Classified
2499/Wood Products, Not Elsewhere Classified
3599/Industrial and Commercial Machinery and Equipment, Not Elsewhere Classified
3599/Industrial and Commercial Machinery and Equipment, Not Elsewhere Classified
3544/Special Dies and Tools, Die Sets, Jigs and Fixtures and Industrial Molds
2051/Bread and Other Bakery Products, Except Cooking and Crackers
2525/Mattresses, Foundations, and Convertible Beds
3462/Iron and Steel Forgings
5051/Metals Service Centers and Offices
3271/Concrete Block and Brick
3442/Metal Doors, Sash, Frames, Molding and Trim Manufacturing
3443/Fabricated Plate Work (Boiler Shops)
3312/Steel Works, Blast Furnaces (Including Coke Ovens) and Rolling Mills
2099/Food Preparations, Not Elsewhere Classified

The inspections will comprehensively analyze noise exposures in the workplace and the measures employers are taking to address the hazard. Compliance officers are directed to sample for noise and evaluate engineering and administrative controls used at the worksite. Employers’ hearing conservation programs will also be reviewed.

Employers in Region III should take time now to review their facilities for compliance with OSHA’s noise standard, along with their hearing conservation programs, and be prepared for these Emphasis Program inspections.

Department of Health and Human Services Proposes to Increase Respirator Certification Fees

Nickole Winnett — Tue, 09 Apr 2013 12:44:29 -0500

The Department of Health and Human Services (“HHS”) issued a proposed rule on respirator certification fees on March 27, 2013. HHS proposed increasing the fees for respirator certifications issued by the National Institute for Occupational Safety and Health (“NIOSH”), and proposed creating a mechanism for routinely updating the fees in the future. The proposed fee structure is designed to enable NIOSH to fully recover its costs in certifying, testing and inspecting respirators. The current fees have remained unchanged since 1972.

The Occupational Safety and Health Administration (“OSHA”) and the Mine Safety and Health Administration (“MSHA”) require employers to supply NIOSH-certified respirators to their employees whenever the use of respirators is required. A NIOSH certificate of approval allows a respirator manufacturer the ability to sell its NIOSH-approved respirators to businesses or industries that require the use of respirators by their employees.

The proposed rule is designed to establish new fees for the following:

Reviewing applications submitted to NIOSH;
Issuing a certificate of approval;
Modifying a certificate of approval;
Maintaining a certificate of approval;
Performing specific, standard laboratory tests which are requested by applicants;
Developing and/or performing novel tests which are required to evaluate respirator performance;
Qualifying applicant respirator product sites and quality systems;
Verifying quality system performance through site quality audits;
Verifying commercially available respirator performance through product quality audits;
Replacing testing equipment; and
Providing and maintaining laboratories and office space

The proposed fee structure takes into account the complexity of the class of respirator and the amount of testing required, as well as the work and resources required to perform the testing.

The proposed rule would also require fee schedules to remain in effect for at least one year and to be revised at least every five years.

According to HHS, the economic impact on the increased fees would cost companies with 50 or fewer employees $2,940 (or 2.2 percent of their revenue), compared with $9,595 (or 0.44 percent of their revenue) for those with 51 to 250 employees, and $18,740 (or 0.14 percent of their revenue) for companies with 251 to 500 employees.

HHS is accepting public comment until May 28, 2013. To comment on this rule, please visit the Federal eRulemaking Portal at http://www.regulations.gov.

Protecting America's Workers Act Reintroduced Into the Senate

Brad Hammock — Tue, 02 Apr 2013 07:01:13 -0500

Senator Patty Murray (D-WA) recently reintroduced a bill that would amend the Occupational Safety and Health Act of 1970. The proposed Protecting America’s Workers Act (“PAWA”) (S. 665) would expand coverage to more workers, increase whistleblower protections, significantly enhance the civil and criminal penalties issued against employers for violations, and would provide rights to victims and their family members during the investigation process.

Specifically, the proposed bill would expand OSH Act protections to include state, county, municipal and U.S. government employees. It would also expand protections to flight attendants and other private sector employees. In addition, the current version of PAWA would require a minimum penalty of $50,000 for a worker’s death caused by a willful violation, and would make felony charges available for an employer’s repeated and willful violations of the OSH Act that results in a worker’s death or serious injury.

The proposed bill would also update the OSH Act’s whistleblower protection provisions by incorporating administrative procedures adopted in similar whistleblower statutes, such as the Surface Transportation Act. The most significant changes would be increasing the statute of limitations period from 30 days to 180 days for filing a complaint with the U.S. Department of Labor and providing a private right of action to all complainants. It would further mandate that the DOL investigate all death or serious injury cases and would require that employers inform workers of their rights under the OSH Act. The bill would also give workers and their families a right to meet with DOL investigators.

Moreover, the proposed bill includes new provisions addressing multiemployer worksites. For example, the proposed bill would amend the general duty clause to expand protections to all workers on the worksite (and not just the employer’s employees), and would require DOL to issue regulations requiring a site-controlling employer to track all recordable injuries and illnesses, including those occurring among contractors and subcontractors. Further, the bill would clarify the employer’s responsibility to provide necessary safety equipment and personal protective equipment to their workers.

The proposed bill was referred to the Subcommittee on Health, Education, Labor, and Pension (“HELP”) on March 22, 2013. HELP will consider it before possibly sending it on to the House or Senate as a whole for a vote.

Avoiding Liability for Work-Related Injuries to Undocumented Workers

Brad Hammock — Thu, 14 Feb 2013 09:48:24 -0500

Employers are well aware that just one work-related accident or illness can result in medical expenses, rehabilitation services, and liability compensation. A recent Nebraska Supreme Court decision is a reminder that undocumented aliens, as well as legal workers, may bring workers’ compensation claims. In Moyera v. Quality Pork Int’l, 284 Neb. 963 (Jan. 4, 2013), the Nebraska Supreme Court held that the Nebraska Workers’ Compensation Act applies to undocumented aliens and these employees could be entitled to permanent total disability benefits (“PTD benefits”) for work-related injuries. Courts in other states also have found that undocumented employees are covered by their state workers’ compensation systems, including: (1) Florida, (2) Kansas, (3) Kentucky, (4) Maryland, (5) New Jersey, (6) North Carolina, (7) Ohio, (8) Oklahoma, and (9) Pennsylvania. Such liability can be avoided by carefully managing the hiring process to ensure that you do not employ aliens who are not authorized to work. Additional details can be found here.

Inquiry to Determine Employee's Religious Objection to Mandatory Vaccination Gains EEOC Counsel's Support

Brad Hammock — Tue, 12 Feb 2013 10:24:05 -0500

Employers may seek additional information regarding an employee’s religious beliefs where the employee seeks to be excused from participating in a mandatory influenza vaccination program for religious reasons, according to the Equal Employment Opportunity Commission’s Office of Legal Counsel. The opinion came in an informal discussion letter in which the Office responded to an inquiry regarding religious accommodations under Title VII of the Civil Rights Act of 1964 in the context of mandatory vaccination programs. The letter highlights the limitations of such an inquiry and is subject to the EEOC’s caution that the letter provides only “an informal discussion of the noted issue and [did] not constitute an official opinion of the Commission.” Additional information can be found here.

OSHA Law Blog Nominated "Best Construction Blog"

Brad Hammock — Wed, 06 Feb 2013 12:19:03 -0500

I am very pleased to announce that the OSHA Law Blog has been nominated as a “Best Construction Blog” by the publisher of North Carolina Construction News. We need your help! If you’re a fan of the OSHA Law Blog, please vote for us by clicking here. You will need to scroll about ¾ of the way down the page until you see all the blog hyperlinks, under the section titled “Best construction blog: Your vote counts.” The blogs are listed alphabetically. Simply check the box next to the OSHA Law Blog, then fill out the form at the bottom of the page, and click “submit.”

Thank you in advance for your vote! We work hard to bring you timely OSHA-related news and information, and are honored to be acknowledged for our efforts.

OSHA Reports Whistleblower Claims are Rising

Brad Hammock — Tue, 05 Feb 2013 13:23:45 -0500

Employee claims of retaliation have risen steadily on a year-to-year basis and recent government statistics suggest this is a continuing trend. The Occupational Safety and Health Administration (“OSHA”), which enforces 22 separate federal whistleblower statutes, has issued updated statistics showing the number of whistleblower cases filed with the agency and their outcome. According to the report, OSHA completed a total of 2,769 cases in 2012, a significant increase from the 1,948 completions in 2011. This continues an upward trend going back several years. The number of complaint “determinations” in 2012 was 2,867, a 42 percent increase from the 2,013 “determinations” in 2011. More information is here.

What to Expect from OSHA in President Obama's Second Term

Brad Hammock — Mon, 28 Jan 2013 11:06:50 -0500

Now that President Barack Obama has officially begun his second term in office, it is appropriate to look ahead at what a “second-term” Occupational Safety and Health Administration will mean for employers. Details are here.

GAO Study Critical of OSHA's NRTL Program

Brad Hammock — Tue, 22 Jan 2013 11:16:12 -0500

The General Accounting Office (GAO) has just completed a critical review of OSHA’s Nationally Recognized Testing Laboratory (NRTL) Program. The NRTL Program is an OSHA program that accredits laboratories to perform testing of certain equipment to ensure its safety when used in the workplace. Most notably, all electrical equipment used in worksites across the country must be approved for use by an NRTL. Which laboratories receive accreditation to perform these services – and the types of products the laboratories can approve – are determined by this program.

For several years, NRTLs and laboratories wishing to be accredited as NRTLs, have complained about significant delays in the recognition process. In addition, whenever an existing NRTL wishes to expand its testing services to include additional products, it must also seek approval from OSHA to do so, which can lead to further delays. Among other things, GAO was asked to examine the extent of these delays and the consequences of them on NRTLs.

Citing an imbalance between staffing levels and scope of responsibilities and unclear application requirements, GAO concluded that the lengthy process “has potentially negative economic consequences for laboratories and requires OSHA staff to divert their time from other oversight activities.” The GAO further identified three key strategies for improving timeliness: (1) aligning program design with program mission and resources, (2) providing clear guidance and timely communication to stakeholders, and (3) developing performance measures and using data to identify inefficiencies.

In response to the GAO report, OSHA committed to further assessing Program effectiveness against alternative approaches and in coordination with other outside agencies. We will continue to keep you posted on any developments with the NRTL Program.

OSHA's Plan for 2013 includes at Least 1,260 Workplace Inspections

Brad Hammock — Wed, 16 Jan 2013 16:10:02 -0500

The Occupational Safety and Health Administration plans to inspect at least 1,260 establishments under its site-specific targeting (“SST”) program for 2013. Details are here.

OSHA Issues Regulatory Agenda

Brad Hammock — Mon, 07 Jan 2013 09:54:49 -0500

OSHA recently issued its long-awaited regulatory agenda. The agenda is designed to provide stakeholders with notice of what major regulatory initiatives the agency is planning and the projected timetables for those initiatives.

OSHA’s agenda is the first issued in several months by the agency and provides a glimpse into the regulatory priorities – in President Obama’s second term. The signature initiative of OSHA over the last four years has been its Injury and Illness Prevention Program (IIPP) rule. That rule has been under development for several years, but has yet to be released in any form or fashion to the public. The recently published regulatory agenda states that OSHA will initiate the SBREFA process in January of 2013 for the rule, with a Notice of Proposed Rulemaking to follow in December, 2013. Another major rulemaking – OSHA’s effort to propose a comprehensive standard regulating silica – is slated to be published in May, 2013.

Three other significant regulatory actions under development are listed as follows:

Combustible Dust – Initiate SBREFA in October, 2013.
Electric Power Transmission and Distribution – Issue final rule in March, 2013.
Update Recordkeeping Rule regarding Reporting of Amputations/In-patient Hospitalizations – Issue final rule in May, 2013.

All stakeholders should continue to monitor progress on these and other OSHA initiatives as we continue to see a very active OSHA in the coming months and years.

Workplace Bullying: Effective Policies for the Workplace

Brad Hammock — Fri, 28 Dec 2012 14:15:43 -0500

Bullying is not exclusive to the schoolyard. Bullying in the workplace is a real problem and, if allowed, can destroy a company’s culture and employee morale. To read the full article, click here.

Former Chairman of NSPB, Employment Attorney Appointed Head of OSHA's Whistleblower Protection Program

Brad Hammock — Fri, 14 Dec 2012 10:36:57 -0500

Assistant Secretary of Labor for the Occupational Safety and Health Administration Dr. David Michaels has appointed Beth Slavet as the new director of the agency’s Whistleblower Protection Program. Ms. Slavet is an employment attorney who has specialized in representing unions, Foreign Service employees and other government workers, with a focus on whistleblower protection. Her appointment is one of several developments in the last two years signaling a growing investment by the Department of Labor, and, as a general matter, the Obama Administration, in whistleblower mechanisms and resources as a means of combating corporate fraud and abuse and other alleged violations of law. Read the full article here.

Workplace Law Implications of the 2012 Presidential Election

Brad Hammock — Wed, 07 Nov 2012 16:25:19 -0500

Now that we know President Barack Obama will remain in office for the next four years, he and and the federal agencies responsible for enforcing the nation’s workplace laws likely will continue to pursue a number of pro-employee initiatives. A sampling is provided here.

Impact of the Presidential Election on OSHA

Brad Hammock — Wed, 31 Oct 2012 12:56:11 -0500

With the presidential election just a few days away, there is a lot of uncertainty on the future direction of OSHA. If President Obama wins a second term, employers should expect to see a more active OSHA from the regulatory perspective, as many rules that could impact the employers are poised to be published in either proposed or final form after the election. From an enforcement perspective, employers should expect to see the same level of active OSHA enforcement in a second-term Obama presidency. If Governor Romney wins the election, some of the regulatory initiatives currently in the pipeline may be slowed or even scrapped, but undoubtedly some will be proposed or finalized. Enforcement should also continue at high levels, although some of the enforcement procedures and targeting programs of the Obama administration may be changed. For example, it is possible that OSHA under a “President Romney” may revisit the Severe Violator Enforcement Program or the Enhanced Administrative Penalties Memorandum published during President Obama’s administration. Needless to say, Tuesday’s results will be – and should be – followed closely by all.

Below is a description of some of the regulatory initiatives that are primed to move forward under a second term Obama Presidency (and perhaps even a first term Romney Presidency):

Injury and Illness Prevention Program (IIPP). OSHA’s IIPP rule has been the agency’s oft-stated most-significant regulatory priority. This initiative has been under development for almost three years. Over the last several months, OSHA has hinted that it is ready to begin the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for the rule, whereby the agency would solicit input on the rule from affected small business entities; but OSHA has not yet started the process. It is still unclear what an IIPP rule will look like since OSHA faces the challenge of creating mandatory requirements that can be applied to employers of all sizes and in all industries. Stay tuned!!

Crystalline Silica. Employers should also stay tuned for OSHA’s rulemaking to comprehensively regulate crystalline silica. OSHA’s draft proposed regulatory text for the rule, published in 2002, considered lowering the permissible exposure limit for the substance; implementing extensive “housekeeping” requirements, including prohibiting the practice of dry sweeping; requiring exposure monitoring and the establishment of regulated areas; and imposing medical surveillance obligations. The proposed regulation could have significant impacts on employers and is still under review by the Office of Management and Budget (OMB), where it was first submitted in February, 2011. This is a proposed rule that could certainly be affected by the outcome of the election.

Stricter Injury and Illness Reporting Obligations. OSHA has also proposed requiring employers to report workplace amputations to the agency within 24 hours, as well as all in-patient hospitalizations within 8 hours. Existing recordkeeping rules require employers to report in-patient hospitalizations of 3 or more employees to OSHA within 8 hours. Any workplace fatality would continue to be reportable, as well. OSHA’s proposed rule that would require employers to “check” a separate column on the OSHA 300 Log is also still out there and potentially ready to go final. Should President Obama win a second term, employers should not be surprised if these rules are finalized in pretty short order.

Rhode Island Becomes First State to Require Flu Shots of All Health Care Workers

Brad Hammock — Tue, 30 Oct 2012 11:27:03 -0500

The Rhode Island Department of Health is now requiring seasonal flu vaccines for all health care workers, including volunteers, who have direct contact with patients. Click here to read the full article.