Environmental and Safety Law Update

By Meagan Newman and Craig B. Simonsen

Employers are reminded of a difficult lesson by a recent administrative law judge decision on “excusable neglect.” Secretary v. Progressive Interest, Inc., OSHRC No. 12-1805.

According to the administrative law judge the citation in this matter was issued to the company on July 30, 2012, received by certified mail, and signed for by an employee, on August 2, 2012. So the deadline to file the Notice of Contest was August 23, 2012. The company had no guidelines for employees handling the mail, including certified mail, during this period, except that employees were to put the mail on the account manager’s desk unopened. Unfortunately, the account manager was out of the country for 30 days and returned back to the office on August 21, 2012, which was two days before the deadline to file the Notice of Contest.

Then the account manager did not sort and go through the mail right away. But more, neither did the company communicate with OSHA at all before filing the written “Late Notice of Contest” on August 27, 2012, 6 days too late. The ALJ found that a “timely filing of Notice of Contest could have occurred had Respondent in place satisfactory internal mail handling procedures.”

If you have recently had government agency inspectors at your facility, it is important to watch for and respond to subsequent correspondences from them in a timely manner. If you find that you cannot meet the agency imposed response deadline, then reach out at once and communicate with the agency representatives seeking a time extension for your response. Such extensions are not always possible -- but not doing so will only result in an outcome you do not want. The citation will be upheld against the company.

By James L. Curtis and Craig B. Simonsen

OSHA has recently posted to its website its Severe Violator Enforcement Program (SVEP) White Paper and concludes that “employers have been paying attention”.

The SVEP, which became effective on June 18, 2010, was intended to focus enforcement efforts on “recalcitrant employers” who demonstrate indifference to the health and safety of their employees through willful, repeated, or failure-to-abate violations relating to significant hazards. Section XX of the SVEP Directive, CPL 02-00-149, required OSHA to submit an end of fiscal year report of SVEP activity. This White Paper provides the Agency’s latest SVEP end of fiscal year report.

In summary, at the end of FY 2011, there were a total of 191 inspections designated as SVEP cases.  The below chart brakes down the cases by SVEP criteria and year filed:

OSHA concludes that the SVEP program is off to a strong start. “The field [offices have] begun conducting follow-up inspections and no follow-up inspection to date has itself been designated as a SVEP case. Further, SVEP has resulted in the expansion of enhanced settlement agreements. Employers have been paying attention to the SVEP since its initiation and the posting of the log to OSHA’s public site has clearly raised awareness.”

As we noted in an earlier blog, OSHA’s SVEP log lists hundreds of employer “severe violators”. The OSHA Guidance on removing employers from the log requires a period of three years from the date of the final disposition of the SVEP inspection citation items including: failure to contest, settlement agreement, Review Commission final order, or court of appeals decision. Employers may wish to work diligently to avoid SVEP listing in the first place.

Based on OSHA’s SVEP results thus far, we expect to see steady growth in OSHA's SVEP program.

By Meagan Newman, Mark A. Lies II and Kerry Mohan

Citing recent reports of deaths of temporary employees, many of which have occurred on the first day of the job, OSHA issued a memorandum this week to its Regional Administrators outlining new measures to protect the health and safety of temporary employees.  The agency is making a concerted effort using enforcement, outreach and training to assure that temporary workers are protected from workplace hazards.

The April 29, 2013 memorandum instructs compliance officers to investigate temporary worker issues during their inspections and states that recent "inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others."  The memorandum also directs compliance officers to document the name of the temporary workers' staffing agency, the agency's location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency).

The memorandum also announces the addition of a new OIS code for temporary workers which will enable OSHA to better track temporary worker issues and exposures.

Focus on temporary workers has been increasing in recent years and in one case a state legislature has taken matters in to its own hands.  In Massachusetts, House Bill 4304, “An Act Establishing a Temporary Workers Right to Know" was signed in to law last year (taking effect in January of this year). It requires temporary agencies to provide employees with specific start and end times and a detailed job description, including clothing, equipment, training, and license requirements. It must also specify any meal or transportation provisions and related costs to be charged to the employee.

All staffing agencies and employers utilizing temporary workers should take heed.  The attention of federal and state agencies and lawmakers is on this issue and employers should be taking steps to ensure that all employees, whether they are full time or temporary, are aware of and properly protected from workplace hazards. 

For more information and further recommendations, see this article.

By Brent I. Clark and Meagan Newman

At an ABA conference in California today, the Deputy Assistant Secretary for OSHA, Jordan Barab, described some of the consequences of the sequester on OSHA's enforcement activity.

OSHA Enforcement

While it appears that furloughs will not take place, there will be significant impacts on compliance assistance and inspections. The Deputy Assistant Secretary told the audience of safety and health attorneys representing management, organized labor, and government, that he anticipated roughly 1400 fewer compliance consultations and 1200 fewer inspections.  There are also likely to be similar impacts among the state plan OSHA jurisdictions.

MSHA Case Backlog

At the same conference, the Solicitor of Labor, Hon. M. Patricia Smith, described effects of the sequester on efforts to reduce the large backlog of MSHA cases.  As a result of the sequester, the MSHA backlog offices in Arlington and Atlanta will close, and the Denver office faces significant reductions!

By Meagan Newman

In a recent decision, affirming Administrative Law Judge Phillips' order vacating a general duty clause citation, the Review Commission held that manufacturer instructions--even where coupled with an industry standard--were insufficient proof of hazard recognition as needed to sustain a general duty clause violation.  The Review Commission focused on the issue of industry recognition and the lack of any specific safety warning or stated link between noncompliance with the instruction (or standard) and a safety hazard.  In a nutshell, the Commission was looking for a clear statement or assertion of a "safety warning" and did not find one.

OSHA inspected the company's worksite in Naples, Florida, after four employees were injured in a pipe explosion.  Following the inspection, OSHA issued a serious citation, alleging that K.E.R. Enterprises d/b/a Armadillo Underground (Armadillo) exposed its employees to the hazard of being struck by pipe fragments in violation of the OSH Act’s general duty clause. 

The Secretary argued that Armadillo had exposed its employees to a recognized hazard—identified in the citation as a struck-by hazard—by failing to follow the manufacturer's instructions. The Secretary proposed that Armadillo could have abated the hazard by installing a restraining gland in accordance with these instructions, as well as the ANSI-approved, American Water Works Association standard C-111 (AWWA standard), entitled “Rubber-Gasket Joints for Ductile Iron Pressure Pipe and Fittings.”). According to the Secretary, the manufacturer's instructions and the AWWA standard both required Armadillo to depressurize and reassemble the pipe to fix the water leak rather than risk overtightening the T-bolts while the pipe was pressurized.

In affirming Judge Philip's order, the Commission recognized that manufacturers’ instructions and voluntary industry standards that contain explicit safety warnings regarding compliance may be probative evidence in establishing a general duty clause violation. See Young Sales Corp., 7 BNA OSHC 1297, 1299-1300, 1979 CCH OSHD ¶ 23,768, p. 28,821 (No. 8184, 1979) (Cottine, concurring) (distinguishing between manufacturer’s explicit safety warnings about the product and manufacturer’s directions for the product’s use, the latter of which does not establish a recognized hazard unless it implicates safety); Oberdorfer Indus., 20 BNA OSHC at 1325-27, 2002-2004 CCH OSHD at p. 51,643 (vacating general duty clause citation where series of ANSI standards and a manufacturer’s Parts List did not establish that using a hook without a latch on a chain hoist is hazardous). However, the Commission distinguished between those cases in which explicit safety warnings are present and the facts as presented in this case.   Because these warnings were not present, and because the company's witnesses testified credibly regarding the standard practices of their industry, both Judge Phillips and the Review Commission found insufficient evidence to sustain the alleged general duty clause violation. 

If you are defending against an alleged general duty clause violation, this case may be useful in that it draws a real, and important, distinction between manufacturers' instructions (or recommendations) and explicit safety warnings.  It also supports the concept that safety warnings alone may not be sufficient to establish a recognized hazard.  Though they are probative, they can be countered with other evidence, such as standard practice.

By James L. Curtis and Craig B. Simonsen

The Occupational Safety and Health Administration has just issued its Site-Specific Targeting 2012 program to direct enforcement resources to high-hazard, non-construction workplaces that have 20 or more workers. While it is the 2012 program, it is effective for 2013. The Directive No. 13-01 (CPL 02), Site-Specific Targeting 2012, includes a listing of the approximately seventy industry groups that will be the subject of OSHA’s enhanced inspection activities.

As part of the inspection program, OSHA is conducting a study to evaluate its effectiveness based on 1,260 randomly selected establishments. According to Assistant Secretary David Michaels, "through the SST program, we can prevent injuries and illnesses, and save lives by focusing our inspection resources on employers in high-hazard worksites where workers are at greater risk…."

With OSHA’s enhanced inspection activities this year, employers should be ever diligent in their safety and health policies, practices, and training activities.

By James L. Curtis and Meagan Newman

The Seyfarth Shaw OSHA Practice Team has just released an information graphic summarizing some key facts relating to workplace violence. The graphic, shown below, presents some startling facts that employers should be familiar with, especially as we approach the stressful holiday season.

By Meagan Newman

As much the East Coast of the U.S. is dealing with Hurricane Sandy it is important to keep in mind that the dangers of a storm of this magnitude persist long after the winds, rains and sleet have passed. 

Storm and flood cleanup activities can present hazards to workers and volunteers. Before embarking on the cleanup, employers should ensure that proper safety precautions are taken and that potential hazards are thoroughly assessed.  These hazards may include: electrical hazards, Carbon Monoxide, musculoskeletal hazards, heat stress, motor vehicles, hazardous materials, fire, confined spaces and falls.

The CDC and NIOSH offer Emergency Response and Hazard Assessment tools that can assist employers in preventing work-related injuries and illnesses in the field. 

By James L. Curtis and Craig B. Simonsen

The U.S. Bureau of Labor Statistics (BOL) has just released preliminary findings in its 2011 Census of Fatal Occupational Injuries Summary. 

Key preliminary findings of the 2011 Census of Fatal Occupational Injuries data indicate that fatal work injuries in private truck transportation rose fourteen percent in 2011, the second consecutive year that counts have risen in that sector.  Also, fatal work injuries increased among non-Hispanic black or African-American workers and among Hispanic or Latino workers in 2011, and for workers all 20 to 24 years of age.  Fatal work injuries involving women increased slightly in 2011.

Transportation incidents accounted for more than two out of every five fatal work injuries in 2011. Of the 1,898 transportation-related incidents, about 57 percent were roadway incidents involving motorized land vehicles.

Fatal falls, slips, or trips amounted to fourteen percent of all fatal work injuries. Falls to a lower level accounted for 541 of those fatalities.  In 2011, the height of the fall was reported in 451 of the 541 fatal falls from higher level. Of those 451 cases, about one in four of the fatalities involved a fall of 10 feet or less. Another fourth occurred from a fall of over 30 feet.

A total of 472 workers were fatally injured after being struck by objects or equipment, including 219 workers who were struck by falling objects or equipment, and 192 who were struck by powered vehicles or mobile equipment not in normal operation.

As shown in the BLS chart, below, among service-providing industries in the private sector, fatal work injuries in transportation and warehousing accounted for 733 fatal work injuries in 2011, an increase of eleven percent over the final 2010 count and the highest count since 2008. The number of fatal injuries in truck transportation, the largest subsector within transportation and warehousing in terms of employment, increased by fourteen percent in 2011, led by a 16 percent increase in general freight trucking and a 12 percent increase in specialized freight trucking.

Among other transportation subsectors, fatal work injuries in air transportation were lower, but fatalities in water and rail transportation were higher in 2011. Fatal work injuries in the professional and business services sector were up 16 percent, led by an increase in fatalities in landscape services to 167 in 2011, up from 133 in 2010.

The Occupational Safety and Health Administration (OSHA) uses this data when developing strategies for what industries to focus OSHA’s enforcement efforts. Accordingly, industries with higher fatality rates can expect greater attention from the OSHA inspectors, and their state equivalents. Up-to-date company safety policies and vigilance in employee safety training may make the difference in keeping your workforce safe, and in fending off OSHA enforcement proceedings.

By James L. Curtis and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) has just published a Guidance on removing employers from the Severe Violator Enforcement Program (SVEP). As we noted in a previous blog, since the SVEP has been in effect over 300 employers have been designated as severe violators. However, until now, there has not  been an established means for an employer to get out from under this designation. 

The OSHA Directorate of Enforcement Programs (DEP) announced that they have completed a review of SVEP policy for removal of employers from the list and has established guidelines for getting off the severe violators list. Under the new Guidance an employer may be considered for removal from the SVEP by an OSHA Regional Administrator (except in cases where national corporate-wide settlements are involved) after:

• A period of three years from the date of the final disposition of the SVEP inspection citation items including: failure to contest, settlement agreement, Review Commission final order, or court of appeals decision.
• All affirmed violations have been abated, all final penalties have been paid, the employer has abided by and completed all settlement provisions, and has not received any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.

If an employer fails to adhere to the terms and provisions of the agreement, the employer will remain in the program for an additional three years and will then be reevaluated.

For cases involving national corporate-wide settlement agreements, the DEP will make a determination, “upon the termination of the agreement, regarding the employer's removal from the program.” The Guidance specifies that pursuant to Guidelines for Administering Corporate-Wide Settlement Agreements (June 22, 2011), the National Corporate-Wide Settlement Coordinator “will ensure that the follow-up requirements of the SVEP have been completed and the terms of the agreement have been implemented.”

To complicate the process of removal, the Guidance indicates that “the previous guidance regarding lining-out establishments remains in effect when facts indicate that reclassification of the SVEP qualifying citations is appropriate due to the quality of evidence brought forth during settlement. However, removal from the SVEP list cannot be used as an incentive for settlement.”

By Meagan Newman

On July 16, 2012 the Federal Railroad Administration (FRA) and OSHA issued a Memorandum of Agreement to facilitate coordination between agencies regarding the enforcement of the Federal Railroad Safety Act's whistleblower provision.  The memorandum establishes procedures for the agencies to follow for handling whistleblower complaints and states that the agencies will jointly develop training to assist FRA enforcement staff in recognizing complaints of retaliation, and to assist OSHA enforcement staff in recognizing potential violations of railroad safety regulations revealed during whistleblower investigations.  The agencies also sent a joint letter to railroad and transportation associations that highlights what they believe to be troubling injury reporting trends.

In the two weeks following the signing of this memorandum, OSHA issued three significant orders—totaling over $688,000 in penalties—to railroad employers following investigations of alleged FRSA whistleblower discrimination. 

• On July 19 OSHA issued an order finding that a Midwest railroad violated the FRSA by retaliating against two employees in separate incidents for reporting workplace injuries at the Markham Railroad Yard in Markham, Ill. OSHA’s order requires the railroad to pay one employee a total of $269,707.27, which includes $81,393.49 in back wages, $4,695.78 in vacation pay, $4,368 for medical bills and $4,250 in attorney's fees, as well as punitive damages of $100,000 and compensatory damages of $75,000.  The railroad was also ordered to pay a second employee a total of $154,694, including $14,694 in back wages, punitive damages of $75,000 and compensatory damages of $65,000. Finally, the railroad was ordered provide a copy of OSHA's "Whistleblower Protection for Railroad Workers" fact sheet to every employee at the rail yard.
• Also on July 19, OSHA issued an order finding another Midwest railroad to have violated the FRSA by terminating a conductor in retaliation for raising concerns about workplace safety while serving in his role as local chairman of the union and for reporting that a trainmaster had instructed him to operate a train in violation of certain Federal Railroad Administration rules in June 2009 near Fort Wayne, Ind. OSHA's order requires the railroad to provide the conductor with training and another opportunity to pass the test, and then upon his passing the test to reinstate his employment under the same terms and conditions as if he had passed the exam in 2009. The railroad was also ordered to pay the conductor a total of $226,327.87, including back wages of $67,736.12, compensatory damages of $75,000, punitive damages of $75,000 and attorney's fees of $8,591.75.
• On July 25 OSHA announced that it had ordered a major national railroad to pay an employee $38,561.92 in damages, including $25,000 in punitive damages, for alleged retaliation against an employee for reporting a work-related injury. OSHA supported the employee's allegation that the railroad issued a 10-day unpaid suspension in retaliation for reporting an injury that occurred on July 8, 2011, while he was working as a switchman in the railroad's Topeka, Kansas, yard.

FRSA whistleblower complaints have been increasing in recent years.  Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the FRSA, and almost 63 percent involved an allegation that a worker was retaliated against for reporting an on-the-job injury.  In issuing these orders and formalizing the agreement with the FRA, OSHA is making clear that rail safety whistleblowers are a priority.  "It is critically important that railroad employees in the Midwest and across the nation know that OSHA intends to defend the rights of workers who report injuries and safety concerns," said Dr. David Michaels, assistant secretary of labor for occupational safety and health. "We will use the full force of the law to make sure that workers who are retaliated against for reporting health and safety concerns are made whole."

In light of these developments, it is vitally important that employers take steps to ensure that their policies and practices do not discourage injury/illness reports, and that the proper means are in place to address concerns raised regarding safety in the workplace.

By James L. Curtis, Brent I. Clark, Mark A. Lies, and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) has cited Lakeview Specialty Hospital in Waterford, Wisconsin, for exposing employees to workplace violence at its healthcare facility and treatment center.  This citation is another example of OSHA’s ongoing efforts to hold employers accountable for workplace violence, including criminal activity, committed by third parties.

OSHA initiated an investigation following a complaint that a worker had been threatened and severely beaten by a client at the facility. OSHA’s news release indicates that an investigation found that staff members at the facility had been assaulted numerous times.  OSHA cited the employer for an allegedly serious violation of the agency's “general duty clause,” for failing to provide a “workplace free from recognized hazards likely to cause serious injury or death.”

Through this citation, OSHA is sending another message to the healthcare industry that OSHA expects hospitals and clinics to anticipate and prevent violent acts by patients or other third parties and that OSHA will issue citations with significant penalties if there are incidents of workplace violence.  OSHA has issued similar citations to employers in the transportation, retail, and foodservice industries where employees regularly come into contact with the public and it can be reasonably anticipated that confrontations can and will arise.  This is especially true of employers with late night operations or facilities in high crime areas.  “‘These citations point to a clear and pressing need for employers operating similar facilities to develop comprehensive and effective programs that proactively address workplace violence situations imperiling the safety and health of their workers,’ said George Yoksas, OSHA's area director in Milwaukee.”

OSHA has recently adopted a compliance directive, Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence. The directive establishes uniform procedures for OSHA field staff in responding to incidents and complaints of workplace violence and in conducting inspections in industries considered “vulnerable to workplace violence,” such as healthcare and social service settings, and late-night retail establishments. In addition, OSHA provides Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers, Recommendations for Workplace Violence Prevention Programs for Late-Night Retail Establishments, and Preventing Violence Against Taxi and For-Hire Drivers Fact Sheet resource materials.

In light of this citation and similar citations issued to other healthcare employers, retailers and foodservice employers, and transportation employers, employers should take another look at their workplace violence and other OSHA programs to limit their potential exposures and liabilities.

By James L. Curtis

On March 12, 2012 OSHA issued yet another six figure citation to a large retailer.  This time OSHA cited the Dollar Tree, Inc. for $121,000 in penalties, including two “Repeat” citations.  This comes on the heals of six figure OSHA citations to Wal-Mart, Inc., Sears, Walgreens, Lowe’s, DeMoulas Super Market and Publix.  Given the number of large citations recently issued by OSHA, the retail industry can no longer shrug them off as isolated incidents, but rather must view this as a concerted enforcement trend.

Significantly, the OSHA citations are often not the result of an injury or significant accident, but rather are often the result of fairly mundane safety hazards being cited by OSHA on numerous occasions at different facilities over time.  For example, the current Dollar Tree citations relate to blocked exits and unsafe stacking of materials.  These are not the types of hazards that typically result in significant injuries and historically have not resulted in significant citations and penalties.  According to OSHA, Dollar Tree had been cited for similar hazards at other facilities in 2008 and then again in 2010.

Based upon this enforcement trend, retailers can no longer view safety issues at their various facilities in a siloed fashion.  Rather, if safety issues have been identified at one facility they must be communicated throughout the organization so that all facilities can identify any correct similar hazards.

Retailers must also resist the urge to simply pay citations that carry a relatively modest penalty.  For years many retailers have treated such citations as a cost of doing business.  However, OSHA’s current trend makes clear that even minor citations can and will come back to haunt the company.  Accordingly, retailers must evaluate the merits of any OSHA citation it receives.  If your investigation reveals defects in the citation, retailers must pressure the OSHA Area Director to withdraw the citation at the informal conference and pursue a notice of contest if necessary.

By Brent I. Clark and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) has recently filed a complaint with the Occupational Safety and Health Review Commission (OSHRC) which it asserts “marks the second such time that the department has expressly sought enterprisewide relief from an employer.” This recent complaint was filed against the DeMoulas Super Markets (DeMoulas). The previous complaint, which is still pending, was filed against the U.S. Postal Service in July 2010 for correction of alleged electrical work safety violations at 350 postal facilities throughout the nation.

The complaint against DeMoulas asks for enterprisewide relief and is allegedly based upon alleged hazards OSHA found during inspections of various DeMoulas stores. This includes two inspections that resulted in citations and proposed OSHA fines totaling $589,200, which DeMoulas has contested to the OSHRC. The citations allege thirty willful, repeat, and serious violations of workplace safety standards at its stores in Rindge and Concord, N.H. The complaint alleges that employees at multiple DeMoulas stores which were not actually inspected by OSHA were exposed or likely to be exposed to fall hazards from unguarded, open-sided work and storage areas, including storage lofts and atop produce coolers and freezers. In addition, it alleges DeMoulas failed to protect employees in the produce, deli, and bakery departments against laceration hazards from knives and cutting instruments by not conducting job hazard analyses (JHA) that would have identified the need for hand protection, and by not providing hand protection to workers exposed to the hazards. One of the bases for OSHA enterprisewide allegations is a 2006 informal settlement agreement whereby the Company allegedly agreed to do a JHA at all locations.

Complaints seeking enterprisewide relief involve numerous complex factual and legal issues. This appears to be OSHA’s newest strategy to aggressively enforce OSHA compliance. Whether the OSHRC or the courts will permit this new tactic is uncertain and will likely take time to resolve. In the meantime, employers with multiple facilities with similar operations should take note of this new strategy by OSHA and take appropriate action to address this new risk, including the manner in which they manage OSHA inspections of a single workplace and whether they will enter into informal settlement agreements with OSHA.

By Meagan Newman

In response to increased injury and illness rates for health care support workers, OSHA announced yesterday that a National Emphasis Program on Nursing Home and Residential Care Facilities will be launched in the coming months.  The data released yesterday by the Bureau of Labor Statistics shows that the incidence rate for health care support workers is almost 2 1/2 times the rate for all private and public sector workers.  Assistant Secretary David Michaels stated, "It is unacceptable that the workers who have dedicated their lives to caring for our loved ones when they are sick are the very same workers who face the highest risk of work-related injury and illness."

The Emphasis Program will increase inspections on these facilities and focus on ergonomic hazards, bloodborne pathogens, workplace violence and slips, trips and falls.  The announcement comes on the heels of OSHA's new compliance directive that addresses workplace violence in health care and late-night retail establishments.  Health care employers should also familiarize themselves with OSHA's 2004 guidance on preventing workplace violence in health care and social service settings.

By Meagan Newman

On October 20, 2011 the U.S. Department of Labor's Bureau of Labor Statistics announced that nonfatal workplace injuries and illnesses declined in 2010, from 3.3 million reported in 2009 to 3.1 million. The incidence rate declined from 3.6 cases per 100 employees to 3.5.

Secretary of Labor Hilda Solis responded to this data, acknowledging that injuries are down but stating that there is much more to be done. In a statement issued on October 20, Secretary Solis responded: "We are encouraged by the reported decline in incidence rates for workplace injuries and illnesses, which is reflective of the joint effort of government, business, unions and other organizations. Nevertheless, 3.1 million injuries and illnesses in the workplace is too high. Serious injuries and illnesses can knock a working family out of the middle class. Workers should not have to sacrifice their health and safety to earn a paycheck."

Secretary Solis went on to point to "alarmingly high" injury rates among public sector employees and state that health care and social assistance workers were more vulnerable to injury than employees in any other industry sector. Finally, the Secretary repeated a theme that has been constant for the last few years; OSHA will focus on recordkeeping practices as a way to ensure every workplace injury and illness is reported accurately by employers.

All employers should take care to ensure that their injury and illness records are accurate and that recordkeeping procedures comply with OSHA standards. Moreover, employers in the health care and social assistance industries and public sector should take heed that OSHA will looking closely at their workplaces. Nursing and personal care facilities specifically should be aware that OSHA's 2011 Site Specific Targeting Plan, which took effect in September of this year, places facilities with DART rates at or above 16.0 or a DAFWII case rate at or above 13.0 on OSHA's primary inspection list. The Plan specifically states that inspections will focus on ergonomic stressors; exposure to blood and other potentially infectious materials; exposure to tuberculosis; and slips, trips and falls. Nursing homes have also been a focus OSHA's Recordkeeping National Emphasis Program since 2008. This Program is effective until February 2012 and was intended to address OSHA's belief that inaccurate recording of occupational injuries and illnesses was widespread among employers.