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What’s New With OSHA New Standards & Enforcement Strategies
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SPONSORED BY
What’s New With OSHA New Standards & Enforcement Strategies
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Presenter
Glenn S. Demby, Esq.
OSHA Attorney
Editor-in-Chief, SafetySmart Compliance,
http://compliance.safetysmart.com
(203) 653-2850
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Big Picture
3 Key OSHA Trends
1. AGGRESSIVE NEW ENFORCEMENT STRATEGIES
2. STANDARD REVISIONS
3. NEW STANDARDS
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Trend 1
OSHA’s
AGGRESSIVE
NEW
ENFORCEMENT
TACTICS
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POP Quiz
WHO SAID IT?
“OSHA has the potential to contribute to a real reduction in workplace
injuries and illnesses. . . and saving hundreds if not thousands of lives
each year. Sadly, OSHA is not fulfilling that promise.”
A. Bill Clinton
B. Frank Sinatra
C. Dr. Seuss
D. Dr. David Michaels
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Dr David Michaels
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NEW OSHA ENFORCEMENT TACTICS
OSHA TARGET COMPANIES, NOT SITES
June 2011 Corporate Settlement Agreement Compliance Directive - “With a CSA, OSHA may obtain formal
recognition by the employer of the cited hazards and formal acceptance of the obligation to seek out and abate those
hazards throughout all the workplaces under its control. CSAs also enable OSHA to leverage resources more widely
and thus use them more efficiently by avoiding numerous inspections of like corporate locations.”
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TACTIC 1: ENTERPRISE-WIDE LIABILITY
• July 2010: US Postal Service
• May 2012: De Moulas Supermarkets
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TACTIC 2: REPEAT VIOLATIONS AT DIFFERENT SITES
Type of Violation Current Law (Sec.
17, OSH Act)
Protecting America’s
Workers Act
Serious $7,000 $12,000
Repeat/Willful $70,000 $120,000
Rule: Repeats = “same or similar violations” cited at same or other locations.
MAXIMUM OSHA PENALTIES
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OSHA’S 2 BIG CHANGES TO REPEAT VIOLATIONS
POLICY
• July 2010: Extends look back period from 3 to 5 years
• Spring 2011: Extends to non-construction sites—roughly 2 dozen cases since April
2011, including: (See Appendix A)
• Walmart
• Dollar Tree
• Rite Aid
• Lowes
• Home Depot
• Sears
• Jiffy Lube
• Walgreen’s
• Best Buy
• Hostess Foods
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TACTIC 3: OTS BAIT-AND-SWITCH SETTLEMENTS
OTS least serious OSHA violations: Up to $7,000; but can be basis for
repeats
HOW IT WORKS
Step 1: Inspectors look for technical violations
Step 2: Issue serious citations
Step 3: Offer to cut to OTS—with less/no fine
Step 4: Cites same thing as repeat within 5 years
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3 WAYS TO PROTECT YOURSELF
1. Factor risk of repeats in deciding whether to contest
2. Communicate across locations
3. Coordinate safety measures across locations
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STEPPED UP GENERAL DUTY CLAUSE ENFORCEMENT
WHAT IS GENERAL DUTY CLAUSE: OSH Act, Sec. 5(a)(1):
Employers must keep workplace free from “recognized hazards”
causing or likely to cause death or serious physical harm to
employees
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TACTIC 1: MORE GDC WORKPLACE VIOLENCE
ENFORCEMENT
• OSHA policy on GDC and WPV decades old—1992 Interp. Letter
• Historic approach: Guidance, not enforcement
• Sept. 8, 2011 OSHA Directive on Workplace Violence ups ante
• At least 4 citations in last 2 years (see Appendix B)
Observations about WPV Cites:
• All 4 involved healthcare institutions in community based setting
• All 4 had history of attacks
• 2 in response to attacks
• 2 in response to complaints
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TACTIC 2: MORE GDC ERGONOMICS ENFORCEMENT
• 1997: OSHA issues first ergonomics citation in Pepperidge Farm
• 2001: Congress kills ergonomics standard
• After 2001: OSHA maintains shadow ergonomics regime, including:
• > 500 ergonomics GDC violations
• Voluntary guidelines
• 2010: OSHA issues Ergonomics Enforcement Program targeting
companies with high injury rates
• 2010: OSHA proposes restoring MSD column to OSHA 300 and starts
issuing cites for failure to record MSDs
• 2011: OSHRC upholds MSD citation in Caterpillar case
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TACTIC 3: GDC TO EXPAND EXISTING STANDARDS
OSHA uses GDC/recognized hazard to issue fines for violations of duties
implied in standards
Example: March 2012: Secretary v. Erickson Air-Crane: Fall protection
to workers on top of 10-foot tankers. Not required under Fall Protection
Standard; but OSHA claimed recognized hazard. OSHRC says no because
OSHA’s own guidelines say no fall protection.
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HOW TO PROTECT YOURSELF
Know what makes a hazard “recognized” (2009 OSHA Field
Operations Manual):
• Actual recognition
• Recognition by the industry
• Common sense
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Trend 2
REVISION TO
OSHA
STANDARDS
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GHS
BACKGROUND
• Good News: Most industrial states have workplace chemical safety laws like Hazcom
• Bad News: Rules are literally all over map
• GHS is UN system to harmonize rules
• OSHA GHS Final Rule, published March 26, 2012, reworks Hazcom
3 MAJOR PARTS
• Re-Classification of Chemicals
• New Label Requirements
• New MSDS Requirements
KEY DATES
• May 25, 2012: GHS officially takes effect
• Dec. 1, 2013: Deadline to train employees in GHS
• June 1, 2015: Deadline for mfr/importer re-classification/SDS preparation
• Dec. 1, 2015: Deadline to prepare GHS labels
• June 1, 2016: GHS takes full effect
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GHS IMPACT ON EMPLOYERS
Phase 1: Get Up to Speed (Immediately to Summer)
• Assessment of Current Measures to Identify Necessary Changes
• Compliance Plan to Implement Changes
• Secure Corporate Support of Plan
Phase 2: Ensure GHS Training of Employees (By Dec. 1, 2013)
• Determine Who to Train
• Label Training
• MSDS/SDS Training
• Retraining—new triggers
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GHS IMPACT ON EMPLOYERS
Phase 3: Revise Hazcom Program (By June 1,
2016) • Training Sections
• Label Sections
• MSDS/SDS Sections
• Hazardous Chemical Inventory
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GHS IMPACT ON EMPLOYERS
Phase 4: Labels (To June 1, 2016: Either SDS or MSDS; After June 1, 2016: Only SDS)
• Ensure all shipments after June 1, 2015 have SDS
• Get SDS from suppliers by June 1, 2016
• Replace MSDS with SDS by June 1, 2016
Phase 5: MSDS/SDS (To June 1, 2016: Either Old or New Label; After June 1, 2016: Only New Labels)
• Ensure all shipments after Dec.1, 2015 have New Labels
• Get New Labels from suppliers by June 1, 2016
• Replace all Old with New Labels by June 1, 2016
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GHS IMPACT ON EMPLOYERS
Phase 6: Modify Other Programs Affected By GHS (By June 1, 2016)
• Process Safety Management
• Hazwoper
• Welding
• Liquid Flammables & Combustibles
• 29 Substance-Specific Programs, including:
• Asbestos
• Lead
• Benzidine
• Vinyl chloride
• Inorganic arsenic
• Cadmium
• Benzene
• Coke oven emissions
• Cotton dust
• Etc.
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RECORDKEEPING CHANGES
Current Rule: Partially-exempt industries listed by SIC (Standard Industrial
Classification) code
Proposed Change: Partially-exempt industries would be listed by NAICS (North
American Industry Classification System) code
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4 THINGS TO DO
1. Check NAICS Partially Exempt Industries list (Appendix D below) to
see if you’re exempt
2. Comply with accident/illness injury reporting rules
3. Complete OSHA annual illness/injury surveys if requested
4. Furnish requested illness/injury data to BLS (under Sec. 1904.42)
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CHANGES TO ACCIDENT REPORTING REQUIREMENTS
Current Rule: You must report incidents resulting in in-patient hospitalization to
3 or more employees within 8 hours
Proposed Changed: You’d have to report:
Incidents resulting in in-patient hospitalization to 1 or more employee within 8 hours; AND
Work-related amputations within 24 hours
What To Do: Change your accident reporting rules and policies if and when the
new rules take effect
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RESTORE MSD INJURY COLUMN TO OSHA 300
Current Rule: Employers must record musculoskeletal disorders on OSHA 300
Proposed Change: Although it wouldn’t change recordability criteria, OSHA has
proposed adding a “musculoskeletal disorder” box to the OSHA 300 that
employers would have to check off to report MSDs
What’s Going On:
• Jan. 2010: OSHA proposes restoring MSD column to OSHA 300
• 2010: OSHA starts issuing cites for failure to record MSDs
• Jan. 2011: OSHA pulls back MSD proposal
• 2011: OSHRC upholds MSD citation in Caterpillar case
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PROPOSED CHANGES TO NOISE EXPOSURE
STANDARD
Proposal: Employers must use “feasible administrative or engineering controls”
to cut workplace noise; PPE to be used as supplemental measures where
admin/engineering controls not feasible.
What’s Going On:
• 2010: OSHA floats proposal to fierce opposition
• Jan. 2011: OSHA pulls back proposal
• Nov. 2011: OSHA broaches emphasizing engineering controls during stakeholder meeting
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PROPOSED CHANGES TO LADDER REQUIREMENTS
Oct. 2012: OSHA to issue Final Rule consolidating all ladder safety requirements
into one rule, including requirements currently contained in:
• Sec. 1910.25 (portable wood ladders)
• 1910.26 (portable metal ladders)
• 1910.27 (fixed ladders). OSHA wants to consolidate all of the ladder rules into a single
standard—which would be 1910.23.
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PROPOSED CHANGES TO LADDER REQUIREMENTS
Key Changes
• Make ladders built into machines and used
for rescue and firefighting exempt
• Instead of 12 inches (30 cm), rungs must
be spaced 10 and 14 inches—as in
Construction
• Rungs, cleats and steps of stepstools must
be spaced between 8 and 12 inches, as
measured between center lines
• Rungs and steps have a minimum clear
width of 11.5 inches (29 cm) for portable
ladders and 16 inches (41 cm) for
individual rung and fixed ladders, subject
to exceptions
• No coating or covering wooden ladders
with any material that obscures structural
defects—as in Construction
• Ladders must be free of puncture or
laceration hazards
• Ladders must be used only for designed
purpose
• All ladders—not just portable wooden
ladders—must be inspected for defects
before use
• New climbing restriction requirements
based on rules in Construction
• Ban on use of portable single rail ladders
• No placing ladders in traffic locations
unless protections used, as in Construction
• More stringent load bearing requirements
for fixed ladders
• Minimum perpendicular distance from the
centerline of steps and rungs, or grab bars,
or both, to the nearest permanent object in
back of the ladder 7 inches (18 cm)
• Employer must ensure that grab bars don’t
protrude on the climbing side beyond
rungs of ladder they serve
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OTHER PROPOSED CHANGES TO WALKING WORKING
SURFACES STANDARD
Oct. 2012: OSHA to issue Final Rule making technical changes to update and
coordinate other parts of Walking Working Surfaces standard (1910.Subpart D)
with Construction, including:
• 1910.23 (Guarding floor & wall openings & holes)
• 1910.24 (Fixed industrial stairs)
• 1910.28 (Scaffolding)
• 1910.29 (Manually propelled mobile ladder stands & scaffolds (towers))
• 1910.30 (Other working surfaces)
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OTHER STANDARDS SLATED FOR 2012 FINAL
RULEMAKING
STANDARD PROPOSED CHANGE STATUS
Electric Power Transmission and
Distribution—Electrical Protective
Equipment
Revises provisions in current standard (1910.269)
regarding use of electric protective equipment and foot
protection for work done during maintenance of
electric power and distribution installations, which
pertain to general industry, so that they’re the same as
requirements for similar work under the construction
standard
NPR issued June 2005
Record closed 2008
Record re-opened 2009
Final rule due May 2012
Confined Spaces in Construction New confined spaces standard like for general industry
based on unique conditions of construction sites
NPR issued Nov 2007
Record closed Oct 2008
Final rule due June 2012
Walking Working Surfaces and
Personal Fall Protection Systems
(Preventing Slips, Trips and Falls)
Revise provisions in current standard (1910 Subpart D)
to reflect changes in technology and procedures. Click
here for details
First NPR April 1990
Second NPR May 2010
Final action expected Oct. 2012
Cooperative Agreements Lets OSHA inspect sites regardless of SHARP (Safety
and Health Achievement Recognition Program) status
NPR issued Sept. 2010
Comments end Nov 2010
Final action expected May 2012
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OTHER REVISIONS IN THE PIPELINE
• Acetylene: Originally published 1974, being
revised based on Compressed Gas Association
CGA G-1, 2009: No Final Rule date
• PPE—Head Protection: Revised based on
ANSI: NPR expected early summer
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Trend 3
NEW
OSHA
STANDARDS
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ILLNESS & INJURY PREVENTION PROGRAM
Pet project of Secretary Michaels
Consistent with OSHA preference of dictating policies,
e.g., June 2011 Corporate Settlement Agreement
Compliance Directive
OSHA first proposed April 2010
No rulemaking scheduled
Would take more political capital than Administration
willing to spend
OSHA dashes hopes of dropping proposal with Jan. 2012
White Paper
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OTHER NEW STANDARDS IN DEVELOPMENT
• Crystalline Silica: Proposed Standard expected in 2012
Mandatory infectious Diseases plans for Healthcare:
OSHA got public comments in summer 2011 but no
rulemaking scheduled
Berrylium: 10 years in the making but miles to go
Food Flavorings Containing Diacetyl: Advanced NPR
2009, but no progress since
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Your Turn
Audience Questions & Comments
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SPONSORED BY
What’s New With OSHA New Standards & Enforcement Strategies
