John Ho

OSHA Proposes Delay of the Electronic Recordkeeping Rule

June 27, 2017June 27, 2017 John Ho Leave a comment

As expected, OSHA proposed today to extend the compliance deadline from July 1, 2017 to December 1, 2017 for submission of electronic records under its new recordkeeping rule. This is not surprising as OSHA has yet to make the portal available to the public.

Public comments on the proposed extension may be submitted electronically at www.regulations.gov by July 13, 2017 which, of course, is past the current compliance deadline.

As a reminder, OSHA has stated that it will provide a secure website that offers three options for data submission. First, users will be able to manually enter data into a web form. Second, users will be able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface).

We will keep an eye on further developments but it’s probably a safe bet that regardless of the public comments received, the compliance date will be pushed back.

When the Summer Wind Comes Blowing In: Remember OSHA’s Heat Stress Guidance

June 20, 2017June 20, 2017 John Ho Leave a comment

Heat stroke attention of outdoor labor Yesterday, American Airlines announced it cancelled approximately 45 regional flights due to intense summer heat in the Phoenix area and there were record highs recorded in the region. The intense heat waves serves as a good reminder that OSHA has guidance on addressing heat stress and employers may need to do more than simply offering employees a cold beverage or an extra rest period although certainly water, rest, and shade are some ways to prevent heat stress illnesses according to OSHA. In fact, OSHA launched a Heat Illness Prevention campaign in 2011 designed to educate employers and employees on the dangers of working in the heat and the phrase “water, rest, and shade” is OSHA’s tag line for the campaign.

According to OSHA, dozens of workers die and thousands more become ill while working in extreme heat or humid conditions. OSHA further states that approximately 40 percent of heat-related work deaths occur in the construction industry but that employees in any industry could be affected and without regard to age or physical condition. Heat stroke is the most serious heat illness but other illnesses may include heat exhaustion, heat cramps, and heat rash.

Although there is no specific standard, OSHA has cited employers for failing to abate recognized heat hazards under the general duty clause. According to OSHA, a Heat Illness Prevention Program should contain the following key elements:

Person designated to Oversee the Program
Hazard identification
Water, Rest, Shade Message
Acclimatization
Modified Work Schedules
Training
Monitoring for Signs and Symptoms
Emergency Planning and Response

John Ho

OSHA and Ergonomics: The Past, Present, and Future

June 14, 2017June 14, 2017 John Ho Leave a comment

sitting at desk with correct posture Ergonomics is the study of work. From an OSHA perspective, it is the process of designing the job to fit the employee, rather than forcing the employee’s body to fit the job. This process may include modifying tasks, the work environment, and equipment to meet the specific needs of an employee to alleviate physical stress on the body and eliminate potentially disabling work related musculoskeletal disorders (“MSDs”). The overall goal is to eliminate injuries and disorders associated with the overuse of soft tissues, e.g., muscles or tendons, awkward posture, and repeated tasks. Such common injuries include carpal tunnel syndrome, tendinitis, and other sprains and strains.

As some may recall, ergonomics was a very hot topic for OSHA in the 1990s. In 2000, OSHA, which had spent a decade studying ergonomics, estimated that $1 of every $3 spent on workers’ compensation stems from ergonomic issues and that the direct costs attributable to MSDs were $15 to $20 billion a year, with total annual costs upwards of $54 billion.

OSHA began an ergonomics rule-making process in 1992 and started drafting an ergonomics standard in 1995, which eventually culminated in the issuance of an Ergonomics Program Standard on November 4, 2000, which became effective on January 16, 2001. The new rule generally contained requirements for most non-construction employers to identify and abate MSDs. Not surprisingly, there was strong criticism by various industry and business groups about the new rule which focused on, among other things, mandatory compliance, cost, and tension with state workers’ compensation laws. Shortly after taking office, President Bush signed Senate Joint Resolution 6 on March 20, 2001, which repealed the new standard. Read More

John Ho

OSHA and Workplace Violence

June 6, 2017June 7, 2017 John Ho Leave a comment

The workplace violence tragedy in Florida yesterday where a lone gunman killed five people and then himself at an Orlando awning factory is a sad reminder that workplace violence remains a serious issue for businesses. OSHA estimates that approximately 2 million American workers are victims of workplace violence each year and that it can strike anywhere, at any time. In fact, during a recent fire drill at our building, the Fire Warden spoke not only about emergency exit procedures during a fire but protocols when an active shooter is in the building. Although it is a frightening scenario to think about, businesses can and should be proactive about identifying potential workplace violence incidents and providing appropriate training.

Although there are no specific OSHA standards for workplace violence, ignoring signs and failing to abate recognized hazards including workplace violence could lead to a violation of Section 5(a)(1), the general duty clause, of the Occupational Safety and Health Act. Specifically, an employer that has experienced acts of workplace violence, or becomes aware of threats or other indicators showing the potential for workplace violence would be on notice for risk of workplace violence and should implement a workplace violence prevention program including engineering controls, administrative controls, and training as it generally should for any other kind of recognized hazard in the workplace. Indeed, some states such as New York already require certain employers (public employers) to have a written workplace violence program including conducting a hazard assessment.

Although it is too early to tell in the Orlando case what, if any, signs existed that might have predicted the shooting, law enforcement has stated that it appears the shooter was singling out individuals and that he had at least one negative relationship with one of the victims. In many of these tragedies, there may have been visible workplace violence signs or other indicators. Read More

John Ho

Electronic Submission of Records Delayed

May 23, 2017June 27, 2017 John Ho Leave a comment

Not surprisingly and as anticipated in our last blog, OSHA’s website was recently revised to note that OSHA is not currently accepting electronic submission of injury and illness logs and that it will extend the July 1, 2017 deadline by which certain employers are required to electronically submit such records.

We will continue to provide updates on the new recordkeeping rule as they emerge.

John Ho

One DOL Drug Testing Rule Officially Gone – Is OSHA Next?

May 15, 2017May 15, 2017 John Ho Leave a comment

On May 10, the Department of Labor officially nullified a rule passed during the Obama administration that limited states’ ability to require mandatory drug testing for individuals applying for unemployment benefits.

As we covered in an earlier blog, OSHA’s new electronic recordkeeping rule (which is currently the subject of legal challenge) contains anti-retaliation language which OSHA has interpreted as preventing employers, except in limited situations, from implementing mandatory post-accident drug testing.

Although the nullified rule was issued by the Department of Labor Employment and Training Administration, one reading tea leaves might well predict that the principle at play may well extend to OSHA’s retaliation rule soon. Read More

John Ho

OSHA Compliance – It’s Not Just About OSHA

May 5, 2017May 5, 2017 John Ho Leave a comment

Most businesses, particularly outside of construction or manufacturing, have probably not been the subject of an OSHA audit or may not have had much involvement with OSHA issues. This is due in large part to the small size of the agency. According to OSHA, with its state partners, there are approximately 2,100 inspectors responsible for the health and safety of more than 130 million workers. Add to the fact that there is no private right of action under OSHA, like the FLSA, and it is understandable why this may be the case.

However, there are other ways OSHA may become an issue for businesses. For example, if your business provides services at another entities worksite, the service contracts often contain provisions that the service provider shall comply with any and all applicable laws and they often reference OSHA specifically. Thus, failing to comply with OSHA standards could provide a basis for a party to terminate a contract even if the “real” reason for terminating the contract may be driven by something entirely different. Read More

John Ho

OSHA Rescinds Fairfax Memo

May 2, 2017May 2, 2017 John Ho Leave a comment

In 2013, OSHA issued what is commonly referred to as the “Fairfax” memo, a standard interpretation letter that, among other things, permitted non-employee, union representatives to participate in the walk-through portion of an OSHA audit. Last year, the National Federation of Independent Business filed a suit challenging this interpretation. Upon OSHA’s notification that the Fairfax memo had been rescinded and that it had removed the guidance from the Field Operations Manual, the Federation withdrew its legal challenge.

It is welcome news for businesses and perhaps a sign of things to come for other outstanding legal challenges to new OSHA rules and past OSHA guidance including but not limited to electronic recordkeeping, anti-retaliation, higher penalties, silica, and OSHA’s Guide to Restroom Access for Transgender Workers, etc.

Stay tuned…

John Ho

Silica Rule in Construction Delayed 90 Days

April 18, 2017April 18, 2017 John Ho Leave a comment

Paving stone saws working with power tools On April 6, OSHA announced it has delayed implementation of its new rule for 90 days which, among other things, cuts in half the maximum allowable level of silica dust exposure in the construction industry. The new compliance deadline is now September 23, 2017. OSHA stated that the delay will provide more time to train inspectors and educate contractors and others regarding compliance issues associated with the rule. According to OSHA, approximately 2.3 million workers are exposed to silica in workplaces.

Business, industry, and labor groups are challenging certain portions of the rule in the D.C. Circuit.

As with a number of other new rules, the ultimate fate of them is both a wait-and-see with the new administration as well as the judicial review process.

John Ho

“Volks” Rule. Going, going…

March 30, 2017March 30, 2017 John Ho Leave a comment

In the final days of the Obama Administration, OSHA finalized a rule that sought to restore what the agency called a “longstanding position” that employers must record and keep records of worker injuries or illness for a full five years or they could be cited.

The D.C. Circuit in a case involving Volks Constructors held that OSHA’s rule of citing employers for the full five year period for such violations exceeded its statutory authority and limited citations to the standard 6 month period.

Last week, the Senate passed a resolution to undo the “Volks” rule and now it will be sent to the President who has indicated that he will sign so it looks like just a matter of time before the “Volks” rule is finally gone.