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

Safety at workThe U.S. Department of Justice (DOJ) and the Department of Labor (DOL) announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.

According to Deputy Attorney General Sally Quillian Yates, “on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”  Department of Labor Deputy Secretary Chris Lu stated that “today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.” DOJ News Release (December 17, 2015).

According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a “decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.”  In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.

The worker safety statutes had generally provided for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.  Specifically, the Memo indicates that prosecutors can “make enforcement meaningful” by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).

Employers should be leery of these now “added” enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.

By Erin Dougherty Foley and Craig B. Simonsen

The National Institute for Occupational Safety and Health (NIOSH) Center for Motor Vehicle Safety (CMVS), through its NIOSH Science Blog, recently featured the Drive Safely Work Week campaign. The event is scheduled for this week, October 5-9, 2015.

Drive Safely Work Week is sponsored by the Network of Employers for Traffic Safety (NETS). NETS is a public-private partnership to engage employers in preventing motor vehicle crashes on and off the job. In their blog, Rebecca Olsavsky and Stephanie Pratt, PhD, note that “motor vehicle crashes are the leading cause of workplace fatalities in the U.S., and the second leading cause of unintentional fatal injuries off the job.” (Emphasis added.)

The CMVS has found that in 2012, 36% of all work-related fatalities reported by the Bureau of Labor Statistics were associated with motor vehicles. Between 2003-2012, 12,458 worker deaths occurred in single- or multiple-vehicle crashes on public highways

To assist employers in protecting their employees from motor vehicle crashes, the CMVS has released a fact sheet for employers: “Preventing Work-Related Motor Vehicle Crashes.” DHHS (NIOSH) Publication Number 2015-111. The fact sheet “outlines components of a successful motor vehicle safety program” and provides a checklist that “employers can use to implement the recommendations.” The CMVS motor vehicle safety program outlines the following components for an effective program:

  1. Company commitment to road safety.
  2. Written policies to guide employee actions to promote road safety.
  3. Driver selection, training, and evaluation that maximizes road safety.
  4. Safe and well-maintained vehicles.

The CMVS fact sheet can provide employers with a broad outline in the development of a company-wide motor vehicle safety program.

It is important to note that if a company-wide motor vehicle safety program is developed or is in-place, then the elements of the program need necessarily be fully implemented and monitored for defects, as if an accident does occur, you may be sure that third party inspectors, investigators (and other counsel) will be reviewing your plan closely to see if it was sufficient, and if it was fully implemented.

If you have questions regarding this information, please contact the authors or your Seyfarth attorney.

By Mark A. Lies, II, James L. Curtis, and Craig B. Simonsen

iStock_000009254156LargeIn a decision last week, the Occupational Safety and Health Review Commission (OSHRC) found that the six month statute of limitations for OSHA to cite an employer does not apply to Process Safety Management (PSM) violations that present a continuing hazard. Secretary of Labor v. Delek Refining, Ltd., OSHRC Docket No. 08-1386 (April 23, 2015).

In Delek, the Secretary alleged that the employer violated 29 CFR § 1910.119(o)(4), by failing to properly close out recommendations from a PHA conducted years before by a prior owner. The employer claimed that citation was time-barred by OSHA’s six month statute of limitations. The Review Commission disagreed, holding that the statute of limitations did not apply because the violations presented a “continuing hazard”.

In Delek, the employer argued that the citations were barred by the statute of limitations based on the D.C. Circuit’s decision in AKM, LLC v. OSHRC, 675 F.3d 752 (D.C. Cir. 2012). In AKM, the D.C. Circuit found that OSHA could not issue a citation for a recordkeeping violation that was older than six months. The basis for the Court’s ruling was that employers are required by the Act to record workplace injuries within seven days of the date the injury occurred. Accordingly, the failure to record becomes a violation after the seventh day and that starts the statute of limitations to run.

The OSHRC disagreed that AKM, LLC applied to the facts before it. Delek involved PSM citations for failure to close out recommendations resulting from a prior PHA that had been conducted years before by a prior owner. Unlike the recordkeeping violation in AKM, the Commission found that the alleged violations were not one time failures to perform a specific task, but presented an ongoing hazard to the employees because the employer failed to act on the recommendation in the PHA with corrective action. According to the Commission, the failure to act on the recommendations means that the dangers identified in the PHA still persisted. Thus, each day that passed without the recommendations being addressed was a continuing violation that could be cited by OSHA, even years after the initial recommendation appeared in the PHA.

There was a vigorous dissenting opinion by Commissioner MacDougall. According to Commissioner MacDougall, the reasoning behind the application of the six month statute of limitations that was applied in AKM applies equally to the PSM citation in Delek. MacDougall argued that the “continuing violation” theory cannot be applied to contravene the plain language of the operative statute of limitations in the Act and unreasonably extend the six month time period. According to Commissioner MacDougall, this would have the absurd consequence of extending the statute of limitations ad infinitum.

Absurd or not, Delek significantly limits the holding in AKM, LLC. As lessons to be learned, employers should review safety audits and ensure that any recommendations have been closed out. This is especially true of PSM facility operators who should review their prior PHA’s and ensure that all of the recommendations have been properly closed out, no matter how old the recommendation may be.

In addition, in a situation where there has been or will be an acquisition of a PSM facility, the employer who is acquiring the facility will want to consider a more comprehensive due diligence inquiry prior to the acquisition to ensure that the PSM program is compliant — since the acquiring employer will be assuming liability for PSM violations that preexisted the acquisition. Employers are encouraged to watch for further developments in this matter.

By James L. Curtis, Kerry M. Mohan, and Craig B. Simonsen

http://social.dol.gov/blog/wp-content/uploads/2014/02/Tower-chart1.jpg
http://social.dol.gov/blog/wp-content/uploads/2014/02/Tower-chart1.jpg

Last October OSHA Administrator David Michaels had, stated that “we at OSHA are very concerned about the rising number of tower worker deaths. The fatality rate in this industry is extraordinarily high – tower workers are killed on the job at a rate more than ten times higher than construction workers.” Emphasis added.

Michaels had previously written a letter to the communication tower industry about the rise in falls from communication towers, stating that “every single one of these tragedies was preventable.” In response to the increasing number of falling fatalities, OSHA had implemented a national outreach campaign using traditional, digital and social media, including a tower safety webpage. OSHA framed the campaign with the slogan, “No More Falling Workers.” OSHA also prepared a Request for Information to engage all stakeholders “in a collaborative effort to prevent more of these senseless tragedies,” which published last week. 80 Fed. Reg. 20185 (April 15, 2015).

In OSHA’s announcement of the RFI, Michaels notes that “in 2014, 12 workers were killed which was double the number of deaths in 2011 and six times the total number in 2012.” In response to the fatality rate, he states that “we understand the importance of this [communication tower] industry, but workers’ lives should not be sacrificed for a better cell phone signal.”

Given this trend employers in the communications tower industry need to be especially cognizant of OSHA’s rampant attention to their business and projects. Special care should be taken to make sure that all of your company safety policies, procedures, and training systems are up-to-date and current. While accidents may happen no matter how well we work to avoid them, having up-to-date written safety programs, and properly training and overseeing your employees, including your contractors and subcontractors, will go a long way in minimizing potential liabilities if and when an accident occurs.

Comments on the RFI, submitted to Docket No. OSHA–2014–0018, are due by June 15, 2015.

By Wan Li, Brent I. Clark, and Craig B. Simonsen
According to Cai Renjun, an official from the People’s Republic of China, Legislative Affairs Commission, of the National People’s Congress Standing Committee, “about 70,000 people died in work safety cases last year, [with] about 60,000 of them in road accidents.” Policy Watch, China Daily (August 26, 2014).

Under new amendments, adopted August 31, 2014, by the Standing Committee of the National People’s Congress, to the Law on Work Safety, employers that are responsible for employment related accidents could be fined as much as 20 million yuan ($3,231,000). The law, which was adopted in August, and became effective on December 1, 2014, also provides that businesses that produce and transport dangerous products and operate mines must employ full-time “qualified safety engineers” to take charge of work safety issues, and the safety engineers are to be reported to the local government. In addition employers may be fined up to one million yuan if they use uncertified safety equipment, and refuse to rectify the situation, in high-risk industries such as mining and the storage of dangerous materials. The fine was previously 50,000 yuan.

Cai Renjun, in the Policy Watch article, cited to a couple of other examples of industries that will be regulated under the amended safety law. For instance, a fire killed 121 people at a poultry plant in Jilin province in June 2013. In August this year a blast at a wheel hub polishing workshop in Kunshan, Jiangsu province, killed 75 people and injured more than 180. “A preliminary investigation found that the explosion was caused by excessive metal dust in the workshop igniting.”

To enforce the new law, government agencies are authorized to take compulsory measures, including “cutting the electricity supply,” if companies refuse to improve their safety procedures. In summary overview, the amendments focus on toughening laws against companies and “persons in charge” of worker health and safety responsibilities.

International employers would be wise to look into their operations in the People’s Republic of China, to ensure compliance with these new amendments. Besides the now large fines and penalties for worker safety incidents, businesses may now also anticipate the facility power being unilaterally shut down — so proceed with any negotiations and discussions with government officials very carefully.

By James L. Curtis and Craig B. Simonsen

In recent remarks by OSHA Administrator David Michaels at the “DOL-FCC Workshop on Tower Climber Safety and Injury Prevention,” Michaels indicated that “we at OSHA are very concerned about the rising number of tower worker deaths. The fatality rate in this industry is extraordinarily high – tower workers are killed on the job at a rate more than ten times higher than construction workers.” Emphasis added.

Michaels noted that in 2013 OSHA recorded 13 communication tower-related worker deaths, which was nearly double the number of the previous two years combined. “So far in 2014, there have already been 11 worker deaths at communication tower worksites.”

http://social.dol.gov/blog/wp-content/uploads/2014/02/Tower-chart1.jpg

Employees in this industry need to climb towers throughout the year, including during inclement weather conditions. Some of the potential hazards may include:

  • Falls from heights;
  • Electrical hazards;
  • Hazards associated with hoisting personnel and equipment with base-mounted drum hoists;
  • Inclement weather;
  • Falling object hazards;
  • Equipment failure; and
  • Structural collapse of towers.

In response to the 2014 falling fatalities OSHA has implemented a national outreach campaign using traditional, digital and social media, including a tower safety webpage. OSHA framed the campaign with the slogan, “No More Falling Workers.” OSHA is also preparing a Request for Information to engage all stakeholders “in a collaborative effort to prevent more of these senseless tragedies.” Additionally, OSHA has set up a dedicated email address, at OSHACommTower@dol.gov, where individuals may “share your stories, concerns, and best practices.”

Employers in the communications tower industry need to be especially cognizant of OSHA’s rampant attention to their business and projects. Special care should be taken to make sure that all of your company safety policies, procedures, and training are up-to-date and current. While accidents may happen no matter how well we work to avoid them, having corporate materials in order, and properly training and overseeing your employees will go a long way in minimizing potential liabilities if and when an accident occurs.

By James L. Curtis and Craig B. Simonsen

In response to an August 1, 2013 Executive Order 13650, OSHA has requested comments (78 Fed. Reg. 73756) on potential revisions to its Process Safety Management (PSM) standard, its Explosives and Blasting Agents standard, its Flammable Liquids standard, its Spray Finishing standard, and potential changes to its PSM enforcement policies.

The Executive Order 13650, entitled Improving Chemical Facility Safety and Security, requires OSHA to publish, within ninety days, a request for information (RFI) designed to identify issues related to the “modernization” of its PSM standard (29 CFR 1910.119), and related standards necessary “to meet the goal of preventing major chemical accidents.” In response to the Executive Order, OSHA published this RFI on December 9, 2013, to collect data and information on its PSM standard and related standards, as well as other regulatory issues involving hazardous chemicals.

According to the RFI, OSHA “will use the information received in response to this RFI to determine what action, if any, it may take.” For instance, OSHA is requesting comments on which chemicals, if any, the Agency should add to the Appendix A of § 1910.119 (its list of 137 highly hazardous chemicals). OSHA is asking for comments on methods for periodically updating Appendix A. OSHA is seeking public comment on “additional management system elements that would increase worker protection if required under the PSM standard.” OSHA is suggesting that it clarify the PSM Standard by adding a definition for “recognized and generally accepted good engineering practices”. These and many other suggested revisions and updates are detailed in OSHA’s RFI.

Comments filed in response to the RFI, docket number OSHA–2013–0020, are due on March 14, 2014.

By James L. Curtis and Craig B. Simonsen

In what appears to be part of OSHA’s ongoing campaign to prevent fall accidents and injuries, OSHA’s Region V announced earlier this year a Local Emphasis Program to address Fall Hazards in General Industry and Construction.

The Emphasis Programs provides the “basis for scheduling and conducting safety inspections of construction and general industry workplaces where fall hazards have been alleged and/or identified.” Additionally, “construction inspections may be expanded to comprehensive inspections of multi-employer sites in accordance with the guidelines established in the Field Operations Manual.”

According to the OSHA news release, “in 2010, more than 10,000 construction workers were injured as a result of falling while working from heights, and another 255 workers were killed.” The new Emphasis Program indicates that “accidents relating to falls from elevations are one of the leading causes of serious injuries and fatalities. In Region V, over a five year period (FY 2007 – FY 2011), there have been 147 fatalities resulting from falls from elevations. Of those, the most, 31, resulted from work on ladders.” The Emphasis Program allows Area Directors “the authority to upgrade non-formal complaints alleging serious fall hazards.” Also to be monitored closely will be the unsafe use of portable or fixed ladders.

The Emphasis Program is intended and designed to increase inspection and enforcement activity. The Agency also expects the program to provide incident tracking, enhance training and outreach, and a means of conducting enhanced outreach on ladder safety. As part of the outreach, OSHA has recently published a number of guides and videos, including “Falling Off Ladders Can Kill: Use Them Safely,” “Preventing Falls in Construction,” and “Prevention Videos (v-Tools) – Construction Hazards.”

While this Emphasis Program is currently restricted to OSHA’s Region V, OSHA’s broader Fall Prevention Campaign is not so limited. Industries across the country in this targeted group should take note of this. If your business, whether in general industry or construction, involves potential fall hazards and the use of portable or fixed ladders, then now would be a good time to consider whether your processes, policies, and training programs would pass an OSHA inspection.

By Mark A. Lies, II, Kerry M. Mohan, and Craig B. Simonsen

A former safety manager at a Tennessee Valley Authority (TVA) Nuclear Site was sentenced to 78 months in prison for major fraud.

The safety manager had allegedly hidden over 80 injuries to obtain over $2.5 million in safety bonuses. He was convicted at trial in November 2012, after being charged by a federal grand jury with eight counts of major fraud against the TVA. On April 11, 2013, U.S. District Judge Curtis L. Collier sentenced the manager to serve 78 months in prison followed by two years of supervised release.

The employer in this case had a contract with TVA to provide maintenance and modifications to the facilities and to provide construction for a reactor restart. The safety manager allegedly generated false injury rates which were used by the employer to collect safety bonuses of over $2.5 million from TVA. As part of a civil agreement filed with the United States in 2008, the employer paid back twice the amount of the received safety bonuses.

At trial, the defendant was convicted of providing the false information about injuries at four plants in 2004, 2005, and in 2006. The evidence presented at trial encompassed over 80 injuries, including broken bones, torn ligaments, hernias, lacerations, and shoulder, back, and knee injuries that were not properly recorded. Some employees testified that they were denied or delayed proper medical treatment as a result of the fraud. The evidence showed that the defendant intentionally misrepresented or simply lied about how the injuries had occurred and how serious the injuries were.

Judge Collier imposed a more severe sentence for the defendant after the Judge found that the defendant had obstructed justice when he testified falsely during the trial. At trial the defendant denied intentionally misclassifying injuries, and disputed the evidence to the contrary in the medical records and from injured employees. The defendant also denied knowing that safety bonuses were tied to his classifications of the injuries. Investigators, however, found emails sent by the defendant with this information and additional information tying the safety bonuses to the injury rates in the defendant’s desk drawers.

This stern sentence sends another stark reminder to individuals in the safety community that it does not pay to falsify records for short-term gain.

By James L. Curtis and Craig B. Simonsen

A recently published study presented at a National Occupational Injury Research Symposium found that Hispanic or foreign-born construction workers were over sixty percent more likely to have fatal falls from roofs than most other workers!

The study, Fatal Falls from Roofs Among U.S. Construction Workers, was published in the Journal of Safety Research (February 2013) 44:17-24. It examined trends and patterns of fatal falls from roofs in the U.S. construction industry over an 18-year period (1992–2009), with detailed analysis for 2003–2009.

The authors of this study conclude that “prevention strategies should target high-risk worker groups”. Also, “many Hispanic or Latino construction workers lack English language abilities, which could result in not understanding proper working procedures….”

This study is consistent with OSHA’s ongoing efforts to ensure that non-English speaking employees receive safety training in a language that they understand. OSHA has also stepped up enforcement efforts related to non-English speaking employees, bringing translators to inspections and ensuring that non-English speaking employees have a voice in workplace safety.

All employers, both construction and general industry, should increase efforts to ensure the safety and health of non-English speaking employees and employees for whom English is a second language. Employers should continue to examine safety policies, procedures, and training materials. Also, having the company policies, procedures, and training materials available to employees in their first language, whether that is Spanish, Polish, or otherwise, would assist the employer in its overall OSHA compliance measures!