By James L. Curtis and Craig B. Simonsen

Warehouseman after accident at heightSeyfarth Synopsis: OSHA just updated its annual list of the top ten cited standards. The list provides a starting point for employers reviewing their own safety programs.

OSHA just announced the Agency’s annual listing of the “Top Ten Most Frequently Cited Standards.” OSHA’s release noted that, “one remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.” Statistically, he noted that more than “4,500 workers are killed on the job every year, and approximately 3 million are injured.”

The ten most frequently cited standards are as follows:

OSHA’s 2015 Top Ten image from OSHA.gov.

As in years past, the Top Ten listing identifies fall protection, hazard communication, scaffolding, respiratory protection and lockout/tagout (LOTO) as major sources of citations. This annual listing is a testimony to both the difficulty of consistent compliance with these standards, and OSHA’s ongoing emphasis on these hazards.

Employers should use this listing as a reminder to emphasize these areas during new employee orientation and existing employee refresher training. Employers should also realize that OSHA will absolutely be looking for violations in these areas when they visit your worksite.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

By Benjamin D. Briggs and Adam R. Young

Mosquito sucking blood from people.Seyfarth Synopsis: OSHA Interim Guidance recommends that all employers develop and implement policies to deal with Zika virus.

What is Zika?

The Zika virus disease (Zika) primarily is spread through the bites of infected mosquitoes.  The most common symptoms of Zika are fever, rash, joint pain, and conjunctivitis (red eyes).  While some cases of Zika have occasionally been severe, infected people rarely go to the hospital or die from Zika.  For this reason, many people might not realize they have been infected.  An individual’s symptoms may appear anywhere from 2 to 7 days after exposure to the virus.

Where is Zika Being Transmitted?

According to the CDC, Zika has been reported throughout South America, Central America, and the Caribbean. Mosquito-born Zika cases have been reported in United States territories, while hundreds of reports cases in the continental United States mostly have been limited to travel-borne sources. Zika may be sexually transmitted or passed to a baby around the time of its birth.  The Zika virus has been documented to result in injuries to fetuses, resulting in severe birth defects such as microcephaly. Federal agencies warn that mosquitoes in the Continental United States will become infected with and spread Zika, and travel-associated Zika infections in U.S. states may result in the local spread of the virus.

OSHA Interim Guidance and Recommendations

We had recently issued a Management Alert on Zika – Employer Liability Issues. On April 22, 2016, the federal Occupational Safety and Health Administration, along with the National Institute for Occupational Safety and Healthy, released an Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus (OSHA – DTSEM FS-3855). The Interim Guidance provides recommendations for employers on issues related to Zika, including hazard communication, employee clothing, and the proper use of insect repellants.  Compliance with these recommendations is voluntary, as they are not formal OSHA standards.  However, employers should review these recommendations and adjust polices accordingly.

Outdoor Workers

For outdoor workers, OSHA recommends:

  • Inform workers about their risks of exposure to Zika through mosquito bites and train them how to protect themselves. Check the CDC Zika website to find Zika-affected areas.
  • Provide insect repellents and encourage their use.
  • Provide workers with, and encourage them to wear, clothing that covers their hands, arms, legs, and other exposed skin. Consider providing workers with hats with mosquito netting to protect the face and neck.
  • In warm weather, encourage workers to wear lightweight, loose-fitting clothing. This type of clothing protects workers against the sun’s harmful rays and provides a barrier to mosquitoes. Always provide workers with adequate water, rest and shade, and monitor workers for signs and symptoms of heat illness.
  • Eliminate sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever possible to reduce or eliminate mosquito breeding areas. Train workers about the importance of eliminating areas where mosquitos can breed at the worksite.
  • If requested by a worker, consider reassigning anyone who indicates she is or may become pregnant, or who is male and has a sexual partner who is or may become pregnant, to indoor tasks to reduce their risk of mosquito bites.

The Interim Guidance provides specific recommendations for health care workers, laboratory workers, and workers who specialize in mosquito control.

Dealing with Infected Employees

When any employees are suspected or confirmed to be infected with Zika , OSHA recommends that employers:

  • Ensure that supervisors and all potentially exposed workers are aware of the symptoms of Zika.
  • Train workers to seek medical evaluation if they develop symptoms of Zika.
  • Assure that workers receive prompt and appropriate medical evaluation and follow-up after a suspected exposure to Zika.
  • If the exposure falls under OSHA’s BBP standard (29 CFR 1910.1030), employers must comply with medical evaluation and follow-up requirements in the standard. See 29 CFR 1910.1030(f).
  • Consider options for granting sick leave during the infectious period. The CDC describes steps employers and employees can take to protect others during the first week of Zika illness.

Employee Travel to Zika-infected Areas

OSHA’s Interim Guidance provides recommendations for dealing with employee travel to areas experiencing Zika outbreaks:

  • Review the CDC guidance prior to assigning travel.
  • Consider allowing flexibility in required travel for workers who are concerned about Zika virus exposure. Flexible travel and leave policies may help control the spread of Zika virus, including to workers who are concerned about reproductive effects potentially associated with Zika virus infection.
  • Consider delaying travel to Zika-affected areas, especially for workers who are or may become pregnant or whose sexual partners may become pregnant.

Even if they do not feel sick, travelers returning to the United States from an area with Zika should take steps to prevent mosquito bites for three weeks so they do not pass Zika to mosquitoes that could spread the virus to other people.

However, employers should closely consider any travel prohibitions — restrictions on employee travel on the basis of pregnancy or gender should be closely scrutinized, as they may form the basis of a gender discrimination claim. Zika is advancing into the Continental United States and employers need to be prepared.  Employers should review these recommendations and plan accordingly.

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

iStock_000011623330_MediumThe Occupational Safety and Health Administration has recently released a draft Guidance on Data Evaluation for Weight of Evidence Determination: Application to the 2012 Hazard Communication Standard.

We had previously blogged about OSHA’s 2012 Hazard Communication Standard (HCS), including an Enforcement Guidance,  and a Directive on Inspection Procedures.  OSHA implemented the HCS to protect against hazardous chemical injuries and illnesses by providing employers and workers with sufficient information to anticipate, recognize, evaluate, and control chemical hazards. The HCS requires employers, manufacturers, and importers to communicate the information through safety data sheets (SDSs), labels, and employee training.

OSHA provided this draft Guidance to help employers “consider all available information in relation to the classification of a hazard.” The Guidance proposes a “weight of evidence (WoE)” approach to assist manufacturers, importers and employers in evaluating scientific studies on the potential health hazards of a chemical and determining what information must be disclosed on the label and SDS for compliance with the HCS. The draft WoE Guidance “compliments” OSHA’s also recently published 432 page “Hazard Communication: Hazard Classification Guidance for Manufacturers, Importers, and Employers,” No. OSHA 3844-02 2016.

The WoE Guidance, OSHA explained, helps employers apply the “WoE approach” systematically and explains the types of information that need to be considered in order to establish classifications under the HCS. The Guidance provides “general examples on how to apply” the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS) criteria, to help manufacturers/employers properly “classify chemical hazards.”

OSHA has extended the comment period on the draft Guidance to May 2, 2016.

By Brent I. Clark, Ilana R. Morady, and Craig B. Simonsen

iStock_000004667648MediumWe had previously blogged that June 1, 2015 is the deadline for compliance with the all new hazardous communication (HazCom) standard (29 CFR section 1910.1200) (HCS 2012) requirements, with exceptions for chemical distributors, and for employers to update workplace labeling and hazard communication programs. 77 Fed. Reg. 17574 (March 26, 2012).

Industry and trade associations have filed petitions and submitted comments with OSHA related to the final rule to “resolve critical compliance concerns with the implementation of the revised Hazard Communication Standard”. In response, OSHA agreed to use its enforcement discretion to provide relief from the June 1, 2015 implementation date for product formulators.

To do so, OSHA has just issued an Enforcement Guidance on the June 1, 2015 effective date. The Enforcement Guidance applies only to HCS 2012 compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures.

Under the Enforcement Guidance, in classifying mixtures, manufacturers and importers are permitted to rely on “information provided on each SDS of the individual ingredients or components from the upstream supplier, except where the chemical manufacturer or importer knows, or in the exercise of reasonable diligence should know, that the SDS misstates or omits required information.” For OSHA inspections occurring after the June 1, 2015 compliance date that involve a mixture that does not have an HCS 2012-compliant label or SDS, compliance officers shall follow the instructions provided in the Enforcement Guidance.

Specifically, where a manufacturer or importer has asserted that it was unable to comply with the June 1, 2015 compliance date, the compliance officer “must determine if the manufacturer or importer has exercised reasonable diligence and good faith to comply with the terms of the standard.” Compliance officers should not cite a manufacturer or importer for failing to meet the June 1, 2015 deadline to have updated labels or updated SDSs under HCS 2012, if:

The chemical manufacturer or importer exercised reasonable diligence and good faith in attempting to obtain HCS 2012-compliant SDSs and classification information from its upstream raw material supplier(s).

Importantly, the guidance only applies where the mixture’s material safety data sheet (MSDS) and label comply with the earlier HCS 1994 standard.

New Deadlines Under the Enforcement Guidance

Now, under the Enforcement Guidance, a manufacturer or importer must create HCS 2012-compliant SDSs within six months from the date it receives all of the hazard information for the ingredients in a mixture. The manufacturer or importer will then be required to provide the HCS 2012-compliant SDS downstream “with the next shipment of the mixture” and when requested by a distributor or employer. Where a chemical manufacturer or importer has not developed an HCS 2012-compliant SDS within six months of receiving the necessary hazard information, a citation for a violation may be issued.

In addition, a manufacturer or importer must create container labels to comply with HCS 2012 within six months from the date that they developed the HCS 2012-compliant SDSs. Containers shipped after the six months period must be labeled with an HCS 2012-compliant label. Where a manufacturer or importer has not developed an HCS 2012-compliant label within six months of the date it developed its HCS 2012-compliant SDS, a citation for violation may be issued.

As to distributors, the HCS 2012 permits distributors to continue to ship chemicals with HCS 1994 labels until December 1, 2015. However, under the Enforcement Guidance, where a manufacturer or importer cannot comply with the June 1, 2015 effective date, there may be distributors that are consequently unable to comply with the December 1, 2015 compliance date. In that situation, the Enforcement Guidance advises, a compliance officer will determine, on a case-by-case basis, “whether a distributor exercised reasonable diligence and good faith to comply with the December 1, 2015 effective date.”

The Enforcement Guidance spells out in some detail what the Agency means by “reasonable diligence” and “good faith efforts,” so the regulated community should seek diligently to conform its policies, procedures, and training systems to ensure compliance.

By Ilana R. Morady and Craig B. Simonsen

shutterstock_30524071On August 6, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries. 79 Fed. Reg. 46012.

The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations with applicable provisions of the United Nations Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code. The August 6, 2014 final rule had set a mandatory compliance date of February 6, 2015 for shippers to incorporate the new requirements into standard operating procedures and to complete training of affected personnel.

However, several retail and industry-related associations submitted a joint request for an extension of six months to the current mandatory compliance date. The request contended that the six month period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement — in particular for surface transportation. The requestors noted that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation.” It was also noted that tens of thousands of consumer products may be impacted by the rule.

In this PHMSA notice, the Agency has partially extended the compliance date to August 7, 2015. 80 Fed. Reg. 9218 (February 20, 2015). In an important compliance distinction, PHMSA is maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. This extension, therefore, does not apply to transportation by aircraft. Otherwise, in response to commenters’ requests PHMSA is extending the mandatory compliance date for the lithium cells and batteries final rule published on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft, to allow additional time to implement the requirements of the rule.

By Mark A. Lies II and Ilana R. Morady

As most employers are aware, OSHA inspections typically involve a request for the employer to produce certain documents. In many cases, employers are unsure of what documents the compliance officer is entitled to see and copy. Employers can also be unsure of how long to retain certain documents required under OSHA. Some OSHA regulations require a specific retention period for documents. Other OSHA regulations, however, do not (although it is often advisable to retain certain documents even if retention is not technically required).

This is to point you to our primer on this topic, “OSHA-Related Documents: Creation And Retention.” The extensive article is intended to give general guidance for numerous OSHA areas.

Remember that it is critical that an employer control the flow of information during the inspection, including the information contained in documents.  By avoiding production of documentary evidence that is not required by law, the employer reduces the potential for regulatory citations. It is also critical that employers understand what documents they are required to create and retain.

Even when an OSHA standard does not specify how long certain records must be retained, it is advisable to consider retaining such records for a significant length of time. For example, many OSHA standards require employee training, but do not necessarily require documentation of training or retention of training documents. Nonetheless, it is advisable to prepare and retain training documents for the duration of employment because training documents are often indispensable in asserting certain defenses to citations.

By James L. Curtis and Craig B. Simonsen

In an illustration of how widely OSHA will be looking at industries that use highly hazardous chemicals, OSHA’s Omaha Area Director recently announced that a Local Emphasis Program will include health inspections at funeral homes, chemical and product manufacturing plants, printing facilities, and outpatient care centers. See, for instance, Appendix A.

Appendix A, Directive CPL 02-14-009.

Bonita Winingham, the Area Director for OSHA in Omaha, Nebraska said that “this local emphasis program will allow OSHA to use its resources efficiently by focusing on industries that are known to use these types of highly hazardous chemicals.” “Through this program, OSHA will improve education for company management and strengthen worker protections.”

The Expanded Health Standard Inspection Local Emphasis Program (LEP), Directive CPL 02-14-009, was set to expire in September, but the Region’s announcement has indicated the Program’s renewal.

According to the Directive, the increased health risk of some chemicals, e.g. benzene, formaldehyde, and methylene chloride, led OSHA to created and enforce chemical-specific regulations for general industry known as “expanded health” standards (29 CFR sections 1910.1001 to 1910.1052). These regulations include exposure limits and monitoring requirements, and in some cases medical surveillance components.

The LEP, according to OSHA, was meant to increase the probability of inspecting establishments in industries that use highly-hazardous chemicals, within the jurisdiction of the Omaha Area Office, that have not received a comprehensive OSHA health inspection, and are not covered by other specific targeting programs.

These industries, both in the targeted area, and nationally, may wish to check their company safety policies, procedures, and training to ensure compliance with OSHA standards and to minimize any potential liability that may come with an OSHA inspection under this LEP and OSHA general industry standards.

By Brent I. Clark and Craig B. Simonsen

OSHA has recently released a “Small Entity Compliance Guide for Employers That Use Hazardous Chemicals.” OSHA 3695-03 2014.

As we noted in an earlier blog, OSHA had in 2012 issued a more than 800-page Final Rule revising the Hazard Communication Standard (HCS), 29 C.F.R. 1910.1200.  The primary purpose of the revised rule was to improve employees’ understanding of health and physical hazards associated with chemical substances, and to align requirements for communicating those standards with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS).  

The Agency’s Final Rule (77 Fed. Reg. 17574 (March 26, 2012)), with the adoption of the GHS,  mandated numerous changes that included: the use of Safety Data Sheets (SDS); the updating of hazard classifications; and new labeling requirements.

As an aid to “small entities,” OSHA has prepared this guide which addresses employer responsibilities under the HCS. Many of the provisions of the standard apply only to chemical manufacturers, importers, and distributors. The guide will assist small employers that only use, but do not produce, chemicals, in order to identify the parts of the rule that apply to their facilities, “and help them to develop and implement an effective hazard communication program.”

Under the Final Rule, December 1, 2013, was the deadline by which employers must have trained employees on the new label elements and the new SDS format. As OSHA inspectors are going to be looking for these elements on their site inspections, employers need to make sure that all of their policy manuals and training programs are compliant with these new rules. Use the new OSHA Guide as a helpful tool, but check with your OSHA compliance attorney if you have any questions that are unanswered.

By James L. Curtis and Ilana R. Morady

As we noted in a blog earlier this year, on December 1, 2013, employers must begin complying with OSHA’s new Hazard Communication (HazCom) standard.

The Agency had revised its HazCom standard (77 Fed. Reg. 17574 (March 26, 2012)) to align with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS), which is an international standardized approach to elements of hazard communication. With OSHA’s adoption of the GHS come mandated changes that are listed out in our earlier blogs, including: Safety Data Sheets (SDSs); hazard classification; and labeling requirements.

December 1, 2013 is the deadline by which employers must have trained employees on the new label elements and SDS format. As OSHA inspectors are going to be looking for these elements on their site visits, employers need to make sure that all of their policy manuals and training programs are compliant with these new rules.

By Ilana R. Morady

2013 is the year that employers must begin complying with OSHA’s new Hazard Communication (HazCom) standard.

What is the new HazCom standard?

Last year, the Agency revised the HazCom standard to align with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS), which is an international standardized approach to elements of hazard communication. With OSHA’s adoption of the GHS come several changes:

Safety Data Sheets. Under the new standard, Material Safety Data Sheets (MSDSs) are now known as Safety Data Sheets (SDSs). SDSs must meet a specified 16-section format.

Hazard Classification. Under the old standard, chemical manufacturers had to perform a hazard determination of the chemicals they manufactured. They could follow any number of procedures for conducting a hazard determination as long as they accurately determined the hazards. Now, chemical manufacturers must follow one and only one procedure for classifying health and physical hazards of chemicals. This procedure is now known as a “hazard classification.”

Labels. Under the old standard, labels had to provide the identity of the chemical and appropriate hazard warnings. This could be done by various means as long as the necessary information was conveyed to the chemical user. The new standard is more prescriptive: after the hazard classification is complete, the standard sets forth exactly what information must be on a label for each identified hazard class and category. This information must be conveyed through pictograms, signal words, hazard statements, and precautionary statements.

When do you need to comply?

This year: December 1, 2013 is the deadline by which employers must train employees on the new label elements and SDS format.

Later years: June 1, 2015 is the deadline for compliance with all new HazCom standard requirements, except that chemical distributors have until December 1, 2015 before they must stop shipping containers with non-GHS labels. June 1, 2016 is the deadline for employers to update workplace labeling and hazard communication programs as necessary. Employers also have to provide employee training for any new physical or health hazards identified by a hazard classification by this date.

Before these compliance dates hit, you can comply with either the new or old HazCom standard, or both.