With the dog days of summer around the corner, OSHA just put out a press release reminding employers with outside workplaces about OSHA’s focus on the hazards of working in high heat.  The press release reinvigorates OSHA’s heat-related illness campaign that began leading into last summer, when OSHA produced a great deal of public information about heat-related illness, including a dedicated heat illness information page on OSHA’s website, a YouTube video, public press statements, speeches by senior Department of Labor and OSHA officials, and even a Heat Safety Smartphone App.

The Smartphone App was the first of its kind for OSHA, and was intended to literally put information into the hands of employees and employers in the field about how to identify the heat index value, recognize heat illness symptoms, understand the conditions in which heat can become a health issue, and how to treat it (e.g., take breaks in the shade, drink water, etc.).

The Heat App also reiterates OSHA’s recommended four-step program for employers with outside worksites.  These steps include:

1. Develop a heat-related illness prevention plan that addresses: (a) supplies (i.e., adequate water supplies and provisions for rest areas); (b) emergency planning and response; (c) worker acclimatization periods; (d) modified work schedules (i.e., planning heavy work early in the day); and (e) training.
2. Train employees in your heat-related illness prevention plan and safe work practices before they are required to work outside in the heat.  The training should include how to identify risk factors for heal-related illness, and explain the importance of drinking small quantities of water often, the value of acclimatization periods, and the procedures for responding to possible heat-related illness symptoms.
3. Track the weather at outside worksites daily, and assess the risk to workers.  Know how hot it will be during scheduled work activities, and use that information to plan work and determine which preventive measures should be taken.
4. Implement your heat-related illness prevention plan when the heat index is at or above 80°F.  Adjust the risk level based on: (a) site conditions (e.g., direct sunlight vs. shade, breeze, etc.); (b) work load; and (c) the type of protective clothing employees are required to wear (e.g., flame retardant clothing).

OSHA has developed a chart for critical actions that employers should take to help prevent heat illnesses at different heat indexes.  OSHA also continues to dedicate substantial resources to talking and producing public materials about heat-related illness to establish this as a “recognized hazard,” and to identify feasible steps employers can take to minimize hazards associated with heat illness.  This goes hand-in-hand with what OSHA must prove to establish violations under Section 5(a)(1) of the OSH Act (aka, the General Duty Clause).

After initiating the heat-related campaign last summer, OSHA issued at least 10 General Duty Clause violations to employers for failing to have a heat-related prevention plan, among other allegations.  The types of work being performed last year that were subject to General Duty Clause citations included landscaping, commercial farming, outdoor construction, and outdoor maintenance.  For example, a landscaping company allowed a new employee, who became ill with a heat-related illness, to work in the direct sunlight on a hot August day without breaks, an acclimatization program for new employees, or a comprehensive heat-related illness prevention plan.

Now in the second year of the campaign, Employers should expect this summer a surge in such violations for employers with employees exposed to heat illnesses.  OSHA’s heat-related prevention message is clear, “Water.  Rest.  Shade.”  Employers with employees exposed to hazards associated with heat illnesses should follow OSHA’s four step program, or they could find themselves feeling OSHA’s enforcement heat.

For more OSHA guidance on the topic, take a look at OSHA’s heat-related illness page, and here is a link to some of last year’s heat related General Duty Clause citations.

1. New Hazard Classification Criteria
2. New Method for Evaluating Mixtures
3. Amended Label Requirements
4. Proscrictive Format for Safety Data Sheet
5. Inclusion of Non-Mandatory Threshold Limit Values in SDSs
6. Information and Training Requirements
7. Other Effective Dates
8. Inclusion of a Category of Hazards Not Otherwise Classified
9. No Preemption of State Tort Laws
10. Covers Combustible Dust Without Clarity

The article expands on our post here last month with a brief summary of the new HazCom rule.

The last month has been a rough stretch for OSHA in terms of Injury and Illness Recordkeeping enforcement.  As we reported last month on the OSHA Law Update Blog, in March, the Seventh Circuit beat back OSHA’s attempt to expand the meaning of “work related” for purposes of determining whether an injury or illnesses is recordable.  Then last month, the District of Columbia Circuit further and dramatically limited OSHA’s authority to cite Recordkeeping violations, by insisting that the injury that is the subject of the recordable case actually have occurred within 6-months and 8 days of the citation.

In this most recent development, the U.S. Court of Appeals for the D.C. Circuit published a decision that strictly applies the 6-month statute of limitations for issuing violations under the Occupational Safety and Health Act (“OSH Act”). See AKM LLC, d/b/a Volks Constructors v. Sec’y of Labor, No. 11-1106 (D.C. Cir. Apr. 6, 2012).  By way of background, the OSH Act states that “[n]o citation may be issued . . . after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c).  The OSH Act further provides that “[e]ach employer shall make, keep and preserve” records of workplace injuries and illnesses “as the Secretary . . . may prescribe by regulation.” 29 U.S.C. § 657(c)(1).  Pursuant to this delegated authority, the Secretary of Labor has issued regulations that require employers to:

1. Record work-related injuries and illnesses on OSHA’s 300 Log and 301 Report “within seven (7) calendar days of receiving information that a recordable injury or illness has occurred;”
2. Prepare a year-end summary report of all recordable injuries during the calendar year on OSHA’s 300A Summary Form; and
3. Maintain or save the 300 Logs, 301 Reports, and 300A Summary Forms for 5 years.

In the Volks case, OSHA issued Volks Constructors (“Volks”) citations on November 8, 2006, for allegedly failing to maintain complete injury and illness records from 2002 through 2006.  Volks was not cited, however, for failing to save the logs and forms for the requisite 5 years.  Rather, the violations related to Volks’ not recording or not properly recording individual recordable injuries or illnesses on the 300 Log.

Volks moved to dismiss the citations as untimely because none of the referenced injuries occurred within the 6 months preceding the citations.  In opposition, OSHA contended that Volks’ duty to maintain injury and illness logs and forms for 5 years tolled the 6-month statute of limitations.  The administrative law judge assigned to the case sided with OSHA, and the Occupational Safety and Health Review Commission (“OSHRC”) later affirmed the ALJ’s decision. OSHRC concluded that because of the duty to preserve the log for 5 years, Volks’ failure to record the employee injuries and illnesses constituted “continuing violations,” which extended the 6-month statute of limitations until six months after the end of the 5-year retention period.

On appeal, the D.C. Circuit reversed and vacated the citations. In doing so, the D.C. Circuit found that the OSH Act’s express language rendered the citations untimely because every alleged failure-to-record violation and every workplace injury that gave rise to the violations “occurred” more than 6 months before the citations were issued.

The Court stated that, under the Secretary’s argument, “the statute of limitations Congress included in the Act could be expanded [infinitely] if, for example, the Secretary promulgated a regulation requiring that a record be kept of every violation for as long as the Secretary would like to be able to bring an action based on that violation. There is truly no end to such madness.”  The Court further noted that “[n]othing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.”

Under the Volks decision, OSHA may only cite employers for failing to record a work-related injury from the 8^th day after an unrecorded injury occurred until 6-months and 8 days after the injury.  The precedential value of the Volks decision is significant because the decision was issued by the D.C. Circuit, which has jurisdiction to hear any case appealed from the OSH Review Commission.

The timing of the decision is also noteworthy because it coincided with the expiration of OSHA’s two and a half year long Recordkeeping National Emphasis Program, an enforcement program that resulted in hundreds of Recordkeeping-focused inspections.  Alleged Recordkeeping violations were found and cited by federal OSHA in two-thirds of the inspections carried out under the Recordkeeping National Emphasis Program, and yielded nearly 1,000 total Recordkeeping violations.  At the time the inspections were conducted and citations issued, OSHA was continuing its practice of citing employers for Recordkeeping issues as old as five years.  We understood that OSHA had intended to renew the Recordkeeping NEP.  Perhaps the Volks decision lead to an early retirement (or temporary hold) on that program.

Regardless of the expiration of the NEP and this new time crunch imposed by the Volks decision, employers should expect OSHA to find new ways to continue citing Recordkeeping violations, such as by amending its regulations or requiring electronic submission of Injury and Illness records to OSHA.

1. Why it is important for grain handlers to prepare now for an OSHA inspection;
2. What to do now to prepare for an OSHA inspection; and
3. How best to manage an OSHA inspection once it begins.

The Grain Journal, a leading voice in the grain industry, published a three-part article series about my speech in its March/April issue.  The articles   – “OSHA Is Targeting You,” “Preparing for an Inspection,” and “During the Inspection” – can be found here at pages 68 – 80 of the March/April issue of Grain Journal.

Sadly, workplace violence continues to be a topic that challenges many organizations.  Indeed, as the news reports continue to remind us, employees and non-employees often take out their aggression and violent acts within the workplace.  As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and non-fatal assaults and violent acts committed within the workplace, and, in particular, within the healthcare industry.  One of the struggles that employers face is trying to prevent violent conduct by third-party non-employees who are generally beyond the control of the employer.

Employers can face significant liability as a result of workplace violence incidents, even when committed by a non-employee.  For example, although the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues in various industries.  OSHA also offers all employers guidance for preparing for and handling emergencies and for developing a workplace violence program, including the adoption of a zero-tolerance policy. In its “Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers,” OSHA sets forth uniform procedures for responding to incidents and complaints, and conducting inspections in the health care industry, and provides recommendations for workplace violence prevention.

In the absence of a specific standard, OSHA can still cite employers under the catch-all “General Duty Clause” of the OSH Act.  This provision requires employers to furnish employees with a working environment free from hazards that: (a) are recognized by the employer or the employer’s industry; (b) have the potential for causing death or serious physical harm; and (c) may be abated by feasible means.  In a compliance directive for “Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents,” released late last year, OSHA outlined the procedures for using the General Duty Clause to cite employers for not adequately protecting against incidents of workplace violence.

Some recent enforcement actions include a hospital in Connecticut, which was cited for failing to provide adequate safeguards against workplace violence when employees in the psychiatric ward, emergency ward, and general medical floors were injured by violent patients.  Similarly, another OSHA inspection identified over 115 instances in which employees of a psychiatric hospital and clinic were assaulted by patients.

OHSA’s Guidelines set forth a number of recommendations that all organizations should implement to prevent workplace violence, including:

• Create a Written Zero-Tolerance Workplace Violence Prevention Program
• Conduct Employee Training
• Screen Patients for Potential Violence
• Ensure Security Personnel are Available and Trained
• Implement System to Flag Patient’s History of Violence

A critical aspect of a prevention plan is the implementation of effective background checks of applicants and employees in order to ensure that individuals with a violent history are carefully screened.  However, employers should be mindful that several federal and state laws restrict the kind of information an employer may be able to obtain concerning an applicant’s qualifications, job abilities, trustworthiness, and propensity towards violence.

For example, a number of states prohibit most employers from considering an applicant’s arrest record if the arrest did not lead to conviction.  Further, private employers may not bar individuals from applying for or holding jobs based upon criminal convictions unless the convictions are job-related or the individual poses a direct threat to public safety or property.

Importantly, with respect to potential discrimination issues, the Equal Employment Opportunity Commission (the “EEOC”) takes the position that because the reliance on arrest and conviction records may have a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment.  However, the EEOC does permit employers to rely on conduct which indicates unsuitability for a particular position as a basis for exclusion, and employers will need to show that that the exclusion is job-related and consistent with business necessity.  The EEOC is expected to issue updated guidelines with respect to criminal background checks.  As one EEOC Commissioner recently commented at a law conference, the EEOC is closely scrutinizing criminal background checks and will likely require employers to provide some type of notice or to conduct an “individualized assessment” with applicants who report criminal convictions on their application before the employer can bar them for employment.  The EEOC hopes that through this “assessment” the employer can then effectively evaluate whether an exclusion based on the conviction is job related and consistent with business necessity.  The EEOC’s revised guidelines are expected by the end of this month.

Accordingly, by being mindful of workplace violence issues and the potential for liability from OSHA and other federal agencies, employers must be prepared to implement thorough and comprehensive policies and procedures designed to prevent workplace violence.  Part and parcel of any prevention plan is a legally enforceable background check policy and a well-trained Human Resources staff to avoid running afoul of any federal or state discrimination law.

Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program targeting Nursing Homes and Residential Care facilities (“Nursing Home NEP”).  In an accompanying Press Release, OSHA announced that the Nursing Home NEP aims to protect workers from safety and health hazards “common in medical industries.”  Effective upon its announcement and for a three-year period thereafter, the NEP focuses on ergonomic hazards (e.g., strains and sprains from patient  handling), exposure to bloodborne pathogens (e.g., needlestick injuries), workplace violence (e.g., assaults by patients or others), and other hazards commonly found within nursing homes and residential care facilities (e.g., exposure to hazardous chemicals or infectious diseases).

By way of background, the Nursing Home NEP is not the first of its kind.  Nearly a decade ago, in September 2002, OSHA issued a virtually identical Nursing Home NEP, which targeted the same types of employers and all of the same hazards except for workplace violence.  Today’s OSHA evaluated the need for a new health industry NEP, and reviewed 2010 data from the Bureau of Labor Statistics.  That review revealed that nursing and residential care facilities still had one of the highest DART rates of all industries.  Specifically, the DART rate for nursing and residential care was nearly three times the national average.  Reacting to this data, the Assistant Secretary of Labor for OSHA, David Michaels, declared:

“These are people who have dedicated their lives to caring for our loved ones when they are not well. It is not acceptable that they continue to get hurt at such high rates. . . .  Our new emphasis program for inspecting these facilities will strengthen protections for society’s caretakers.”

As was the case with the 2002 NEP, the new Nursing Home NEP focuses primarily on ergonomic stressors relating to resident handling, exposure to blood and other potentially infectious materials, exposure to tuberculosis, and slips, trips and falls.  This NEP also addresses workplace violence, which was not part of the 2002 NEP.

What’s most interesting about the Nursing Home NEP, especially as compared to OSHA’s other Special Emphasis Programs, is its intended heavy reliance on the General Duty Clause; i.e. the catch-all duty in the OSH Act requiring all employers to provide a workplace free from “recognized hazards that are likely to cause death or serious physical harm.”  There are no specific OSHA standards for two of the primary hazards targeted by this NEP — (1) Ergonomics; and (2) Workplace Violence — so citations related to those two hazards will have to fall under the General Duty Clause.

In determining which facilities to inspect under the Nursing Home NEP, OSHA has prepared a list of Skilled Nursing Care, Immediate Care, and Nursing and Residential Care facilities with DART rates at or above 10.0 as reported in the CY 2010 OSHA Data Initiative (some 700 sites).  Each OSHA Area Office must conduct at least three Nursing Home NEP inspections per year.  The Nursing Home NEP also continued a recent trend by mandating that all approved State Plan OSHA Programs also adopt the NEP, and also conduct at least three Nursing Home NEP inspections per year.

Although the scope of this NEP covers only nursing homes and residential care facilities, practically speaking, it will have a major impact on the healthcare industry as a whole.  The reason is, a major component of the NEPs launched under the current OSHA leadership has been extensive training of OSHA’s compliance safety and health officers (CSHOs), who conduct the NEP inspections.  The training related to the Nursing Home NEP will arm CSHOs all over the country with a better understanding of the OSHA standards and General Duty Clause application to the supposed hazards common in nursing homes.  Those hazards happen also to be the same hazards that impact hospitals, doctors’ offices, rehab centers, and other healthcare workplaces.  The same broad impact was seen in the chemical industry after OSHA developed its Petroleum Refinery PSM NEP.  OSHA suddenly had a much larger group of CSHOs who understood the complex PSM Standard, and knew what to look for in PSM covered processes.  Even before the Chemical Facilities PSM NEP launched, chemical manufacturers were already seeing a surge in PSM enforcement because of the new army of PSM-knowledgeable CSHOs borne out of the Refinery NEP.  The healthcare industry will see the same surge.

To prepare for increased scrutiny under the Nursing Home NEP, industry stakeholders should evaluate and enhance their internal programs and policies as they relate to the hazards we know OSHA will be targeting.  A good starting point would be cross-check the programs against the NEP Directive and the referenced Guidance Documents within, such as OSHA’s:

1. Guidelines for Nursing Homes: Ergonomics for the Prevention of Musculoskeletal Disorders;
2. Directive on Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents;
3. Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens Standard; and
4. Nursing Home eTool.

Likewise, employers should be sure they are prepared to properly manage an OSHA inspection.  Epstein Becker Green’s national OSHA Group prepared an OSHA Inspection Checklist to help guide employers through the steps necessary to prepare in advance for a visit from OSHA, and to effectively manage an inspection once it begins.

Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule (“HazCom”), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or “HCS”).  The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s”) for all chemicals manufactured or imported in the United States.  According to Assistant Secretary Michaels, “OSHA’s 1983 Hazard Communication Standard gave workers the right to know . . . this update will give them the right to understand.”

In preparing to implement the new HazCom Standard, below is a list of 10 important things employers need to know about the final rule.  Look out for our article coming soon in EHS Today Magazine for a more detailed review of these 10 issues.

1.  Hazard Classification:  The new HCS has specific criteria for classifying health and physical hazards into a hazard class and hazard category.  The hazard class indicates the nature of hazard (e.g. flammability) and the hazard category is the degree of severity within each hazard class (e.g. four levels of flammability).
2. Mixtures:  Evaluating health hazards of mixtures is based on data for the mixture as a whole.  If data on the mixture as a whole is not available, importers and manufacturers may extrapolate from data on ingredients and similar mixtures.
3. New Label Requirements:  For each hazard class and category, chemical manufacturers and importers are required to provide common signal words, pictograms with red borders, hazard statements and precautionary statements.  Product identifiers and supplier information are also required.
4. Safety Data Sheets: SDS’s replace MSDS’s, and the new Standard requires a standardized 16-section format for all SDSs to provide a consistent sequence for organizing the information.
5. Non-Mandatory Threshold Limit Values in SDSs:  Employers are required to include in SDS’s the non-mandatory threshold limit values (TLV’s) developed by the American Conference of Governmental Industrial Hygienists, in addition to OSHA’s mandatory permissible exposure limits (“PEL’s”).
6.  Information and Training:  Employers are required to train employees on the new label elements (e.g. signal words, pictograms, and hazard statements) and SDS format by December 1, 2013.
7. Other Effective Dates:  The table below shows the rolling effective dates of the new Standard:
8. Hazards Not Otherwise Classified: Hazards covered under the old HazCom Standard but not addressed by GHS are covered under a separate category called “Hazards Not Otherwise Classified” (“HNOC”).  HNOC’s need only be disclosed on the SDS and not on labels.  Notably, pyrophoric gases, simple asphyxiants, and combustible dust are not classified under the HNOC category.  Rather, these chemicals are addressed individually in the new Standard. 
9. No Preemption of State Tort Laws:  The new HazCom Standard does not preempt state tort laws, which means that it will not limit personal injury lawsuits regarding chemical exposures, inadequate warnings on labels, and/or failure to warn.
10. Combustible Dust:  The final rule added combustible dust to the definition of “hazardous chemicals,” and thus, combustible dust hazards must be addressed on labels and SDSs.  Although the new HazCom Standard expressly states that combustible dust is covered, OSHA failed to define combustible dust, which will likely create substantial confusion and uncertainty for employers.

On March 20, 2012, the U.S. Court of Appeals for the Seventh Circuit vacated an ALJ’s decision penalizing Caterpillar Logistics Services, Inc. for allegedly failing to record an employee’s “work-related” musculoskeletal disorder (“MSD”) on the Company’s OSHA 300 log.  Caterpillar Logistics Services, Inc. v. Sec’y of Labor, No. 11-2958 (7th Cir., Mar. 20, 2012).  This case is significant because it stamps back (at least temporarily) an effort by OSHA to expand the meaning of “work-related” in the context of ergonomic injuries and OSHA Injury & Illness Recordkeeping.

By way of background, OSHA requires employers to record certain work-related deaths, injuries, and illnesses.  See 29 C.F.R. § 1904.4(a).  According to OSHA’s regulation, an injury is work-related if “the work environment either caused or contributed to the resulting condition.”  29 C.F.R. § 1904.5(a).  Employers are required to record such injuries on OSHA’s 300 Log, 300A Summary Form, and 301 Report.  MSDs are injuries to muscles, nerves, tendons, ligaments, joints, cartilage or spinal discs that were not caused by a slip, trip, fall, motor vehicle accident or similar trauma.

In the Caterpillar Logistics case, an employee experienced pain in her right arm after working five weeks in the Company’s packing department.  She visited the Company’s medical clinic, where the staff physician diagnosed her condition as medial and lateral epicondylitis (aka golfer’s elbow and tennis elbow).  The physician concluded, however, that the repetitive motions in the employee’s work alone did not contribute to her condition.  A five-member internal review panel agreed with the physician’s diagnosis and conclusion.  The Company, therefore, did not record the injury on the 300 Log as work-related.

After an inspection, however, OSHA determined that the employee’s injury was “work-related” and assessed the Company a citation for failing to record the injury.  An administrative law judge (“ALJ”) sustained OSHA’s determination.  In doing so, the ALJ concluded that “an employee’s work activities do not have to be the cause, but rather a cause of an injury or illness” in order to be recordable (emphasis added).   The ALJ also found the preponderance of the evidence showed the employee’s work activities were at least a contributing cause of the employee’s epicondylitis.  The Occupational Safety and Health Review Commission declined to review the ALJ’s decision, rendering the ALJ’s determination final.

On appeal, the Seventh Circuit vacated the ALJ’s decision and remanded the matter for further proceedings.  The Court criticized the ALJ for basing his decision on the sole physician to testify in support of OSHA’s position and ignoring the “strong indications that [his] favored witness got things wrong.”  Indeed, the Court discounted OSHA’s physician’s testimony because he failed to explain why, if the work activities in the packing department contribute to epicondylitis, no other worker in the Company’s 10 years of operations had contracted this same condition.  Additionally, the Court stated that OSHA, not the judiciary, must determine what “§ 1904.5(a) means in saying that an injury is work-related if working conditions ‘contributed to’ the injury.”  The Court proposed two alternative meanings for the “contributed to” requirement for OSHA to consider: (1) “increased the probability, above background levels, by a statistically significant amount;” or (2) “doubled the probability.”

Nevertheless, the Seventh Circuit was puzzled by the presence of the work-relatedness requirement in § 1904.4(a).  The Court reasoned that if the purpose of the injury log is to help the U.S. Department of Labor determine which occupations are hazardous and in need of enforcement resources and regulatory changes, then that purpose is best served if employers were required to record all injuries, not just the injuries that employers determine are connected to the workplace.  The Court further noted that eliminating the work-relatedness requirement would save employers time and the high expense of evaluating whether workplace factors contribute to injuries and illnesses.  For these reasons, the Court noted that “the Secretary may wish to take another look at § 1904.4(a).”

Because of the Caterpillar Logistics case, it remains unsettled whether an employee’s job duties must be the cause of an injury or illness or a cause to constitute work-relatedness.  At the very least, however, this decision reminds ALJs to weigh all the evidence in determining whether an injury or illness is work-related and/or an anomaly.  Employers should stay tuned for further guidance on how much workplace factors must contribute to injuries and illness to be considered work-related.  In the meantime, because the work-relatedness requirement is on OSHA’s radar, employers should review their regulatory obligations to record work-related injuries and illnesses, and ensure that they are maintaining in accurate injury and illness recordkeeping logs.

The U.S. Chemical Safety and Hazard Investigation Board (CSB) announced earlier this month a new policy disguised as a nod to enhancing employee participation in CSB investigations, but which may actually represent a dramatic limitation in the investigation rights of both employees and employers.  The new policy expands the role of non-management employees in the CSB’s investigations into the causes of chemical accidents that occur at industrial facilities, but does so at the expense of employers’ involvement and employees’ rights.

By way of background, the CSB was created under the Clean Air Act, but does not report under the EPA, nor does it fall under the Department of Labor.  Rather, the CSB is an independent, non-enforcement federal agency charged with investigating industrial chemical accidents.  While the CSB investigates many of the same incidents as the Occupational Safety and Health Administration (OSHA), the CSB distinguishes itself from OSHA in key ways, and really fancies itself as a sister agency to the National Transportation Safety Board (NTSB).  Like the NTSB, which conducts investigations of transportation related incidents, and issues reports and recommendations but not citations or fines, the CSB conducts root cause investigations of chemical accidents at fixed industrial facilities, and issues reports and recommendations but no penalties.

During its investigations, CSB investigators request (or subpoena) records, interview management and non-management employees, evaluate physical evidence, and review applicable regulations and industry practices.  Following its investigations, the CSB holds public meetings to review its finding, and drafts public investigation reports or case studies that include safety recommendations issued to companies, government agencies (often OSHA), trade associations, local governments, labor unions, and other entities.  Although CSB recommendations are technically non-mandatory, CSB tracks the implementation of its recommendations, and uses public shaming to compel employers and others to adopt the recommendations.

Below are the key differences between the manner in which the CSB and OSHA carry out their respective missions:

1. Unlike OSHA, which has a six-month limitations period to complete its inspections and issue citations, the CSB has no time limit.  Indeed, it is not uncommon for CSB investigations to last more than a year;
2. Whereas OSHA issues citations that carry monetary penalties, require mandatory abatement, and can result in criminal charges, the CSB issues “non-mandatory” recommendations following its investigations;
3. In addition to the public shaming related to its recommendations, the CSB is also known for making public statements early and often about its on-going investigations, preliminary findings, interaction with the employer, and just about anything else, unlike OHSA, which, by policy, makes no public comments as to active matters; and
4. While both agencies frequently make critical mistakes in their findings, OSHA citations can be contested before a body of administration law judges, but because the CSB is a non-enforcement agency, there is no venue to which employers can appeal to correct the CSB’s flawed reports and recommendations (not even by attaching formal comments to CSB’s official reports, like its “sister agency” the NTSB allows).

Another key difference between OSHA and CSB investigations is that OSHA excludes management representatives (e.g., the employer’s attorney) from non-management interviews, but the CSB has historically allowed employer’s representatives in interviews of employees.  The new policy articulated by the CSB in March 2012 includes a policy shift that strikes a major blow to employers’ and employees’ rights in CSB investigations.  The policy states:

“During CSB interviews, any non-supervisory employee may be accompanied by another non-supervisory employee, a personal attorney, or a family member as described in 40 CFR 1610.”

Under 40 CFR 1610.1(a), witnesses who are compelled to appear for interviews are entitled to have counsel present.  Based on CSB’s specific identification of a “personal attorney” or “fellow non-supervisory employee” as acceptable persons to accompany employees in interviews, however, it appears the CSB plans now to exclude company counsel from appearing with non-management witnesses, even if the witness expressly requests that specific attorney as his representative.

While the CSB Chairman stated that “effective employee participation” is the fundamental purpose of the new policy, and that information from employees is the most useful source for CSB understanding a facility’s day-to-day operations, it is troubling that the CSB intends to actually strip away employees’ rights by limiting their choice of interview representative.  It is even more troubling that just as the CSB praises the value of employee participation, they trample on the rights of participation of employers, who design and build the facilities where the accidents occurred, who manage the operations that were involved in the incidents, and who have access to valuable institutional knowledge not available to many non-management employees.

Furthermore, given that CSB findings and recommendations are publicized and used to shame allegedly bad actors, and employers have no venue to challenge errors and misstatements in CSB reports and recommendations, it is even more troubling that the employer is now going to be excluded from key aspects of the investigation process.  Employers have successfully challenged under the Administrative Procedure Act (APA), OSHA’s exclusion of management representatives from non-management interviews.  The same rationale for those challenges should apply in the CSB context as well.  Accordingly, provided the non-management employee and the employer waive any potential conflict of interest, and the employee is not pressured to select a management representative as his interview representative, this new CSB interview policy likely violates the APA, and should be challenged on behalf of employees who desire to have company counsel participate in their interviews.

Below is a set of important questions that we are frequently asked by clients when OSHA unexpectedly shows up at their doorsteps.  These questions and many more are also addressed in our OSHA Inspection Checklist desk reference guide.

*          *          *          *          *          *          *          *

Scenario 1:   An OSHA Compliance Safety and Health Officer (CSHO) arrives unannounced to begin an inspection, but the employer’s representative whom the employer desires to manage the OSHA inspection is not present at the workplace.  Can the employer request that the CSHO return later or wait to start the inspection until the employer’s chosen representative is available?

Answer:  Yes, the employer can request that the CSHO return at a later time or wait a reasonable amount of time until the employer’s chosen inspection representative is available.  The OSH Act grants to employers the right to be represented during an OSHA inspection and to physically accompany an OSHA CSHO during on-site inspection activities.  The employer has the right to designate whomever it wants to fill that role, and if that person is not available at the moment OSHA arrives, but can be available in a reasonable amount of time, the employer can request that the CSHO wait or return later.

OSHA’s Field Operations Manual explains that OSHA believes waiting approximately one hour is a reasonable amount of time to delay the start of an inspection to wait for the employer’s selected representative to become available.

“When neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner, operator or management official.  The inspection shall not be delayed unreasonably to await the arrival of the employer representative. This delay should normally not exceed one hour.”

Notwithstanding OSHA’s purported one-hour rule, unless the CSHO has a warrant or other exigent circumstances exist (i.e., imminent danger in plain view), the employer can refuse to consent to the inspection until its chosen representative arrives, so OSHA  could not proceed with the inspection without obtaining a warrant, which generally takes at least a couple of days.

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Scenario 2:  OSHA explains at the Opening Conference that the inspection is in response to an employee complaint about a machine guarding hazard in the maintenance shop, but he requests that the employer’s representative grant him a general tour of the entire workplace.  Should the employer’s representative provide the CSHO with a general tour of the entire workplace?

Answer:  No, in the absence of a related special emphasis program, a warrant, or a hazard in plain view, OSHA cannot expand the scope of a complaint-based inspection beyond the location and hazard identified in the complaint without the employer’s consent.  The employer should insist that the inspection be limited to only that location.

To minimize the risk of the CSHO expanding the scope of the inspection based on his observing hazards in plain view in other locations, the employer’s representative should follow a route to the complaint location that introduces the CSHO to the least sensitive areas of the facility, even if that means walking the CSHO around the outside of the building to a different entrance closer to the location of the complaint.

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Scenario 3:  The CSHO asks to conduct an interview of a non-management employee, but the employee explains to his supervisor that he does not feel comfortable speaking to OSHA and does not want to be interviewed.  How should the employer representative respond to the employee?

Answer:  The employer representative can advise the employee that it is the employee’s choice whether or not to agree to the CSHO’s request for an interview, but also that OSHA has subpoena authority, and may compel the employee to participate in an interview if he refuses the request for a voluntary interview.  Employees’ participation in OSHA inspections is protected from employer retaliation by Section 11(c) of the OSH Act, so the employer representative may not discourage the employee from participating in the interview or from sharing any particular information during the interview, and may not take any adverse employment action on account of the employee’s decision whether to participate in the OSHA interview. 

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Scenario 4:  At the conclusion of a management representative interview, the CSHO asks the management witness to review the CSHO’s interview notes and sign the notes if they appear to be accurate or to write out and sign a witness statement.  Does the management representative witness have to and/or should he agree to sign the notes or write out his own witness statement?  What about being taped or video recorded during the interview?

Answer:  OSHA has no authority to require any witness to sign any document or to prepare a written witness statement, or any form of new written document during an inspection.  Likewise, during a “voluntary” interview, witnesses may refuse to allow an interview to be video or tape recorded.  Note that OSHA can issue a subpoena that compels a witness to submit to an audio or video recorded interview.  OSHA cannot, however, compel an employee to write or sign any document even with a subpoena.

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Scenario 5:  During an inspection, OSHA issues a subpoena to your workers’ compensation insurer seeking risk assessments, loss control surveys, and other safety audits conducted of your facility.  Is the insurance company required to provide such materials?

Answer:  They are now.  A few months ago, OSHA won a key battle against an insurance company and all employers in a case involving two teens, who became engulfed in corn.  As part of OSHA’s investigation, OSHA subpoenaed records from the employer’s workers’ compensation insurer, Grinnell Mutual Reinsurance Co., seeking documents and testimony regarding working conditions observed by the insurer.  Grinnell refused to produce any documents or information, and OSHA sued the insurer in federal court.  The insurer argued that enforcing the subpoena would cause a “chilling effect” by discouraging businesses from allowing insurers to conduct safety inspections if the material could later be used against them in litigation or OSHA enforcement proceedings.  The court disagreed, finding that “[w]ith OSHA’s authority to investigate, comes the authority to require production of evidence and to obtain court enforcement of subpoenas seeking such evidence.”  See the district court’s opinion in Solis v. Grinnell Mutual Reinsurance Co.

OSHA has made it a habit of requesting from employers and third parties during workplace inspections, copies of safety audit reports from third parties (e.g., insurance companies, consultants, etc.), and using the audit reports to the detriment of employers.  OSHA uses the findings from such safety audits as a roadmap to steer their inspections, and references uncorrected audit findings as evidence:

1. to support citations;
2. of the required showing of employer knowledge of violative conditions; and
3. of willfulness.

Following the Grinnell case, we know that OSHA has authority to access such audit records unless the audit was conducted under the protection of the attorney-client privilege.  In order to properly invoke the attorney-client privilege today, employers should seek the legal opinion of counsel with regard to OSHA compliance issues, and have counsel either personally conduct the audit or direct a third party consultant to provide expert, technical assistance to the attorney.  The consultant should obtain information about the employers’ programs, procedures, and physical conditions at the plant directly from the employer, rather than gathering that information independently (i.e., any physical inspection or observations should be made in conjunction with a company representative, who points out and explains operations and equipment to the third party auditor).  The audit report should be delivered to counsel, who in turn must use the report to deliver legal advice based on the technical information provided by the consultant (i.e., a memorandum to the employer describing legal compliance issues and attaching the report).