National Emphasis Program

By Brent I. Clark, Mark A. Lies, IIAdam R. YoungDaniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has recently released its National Emphasis Program on Trenching and Excavation, CPL 02-00-161 (October 1, 2018), which requires OSHA to open inspections against any contractor involved in trenching or excavation work and report information back to the Area Office and national online system.

OSHA has long maintained construction standards related to trenching and excavation safety, including 1926.650 (Scope, application, and definitions applicable to this subpart), 1926.651 (Specific Excavation Requirements), and 1926.652 (Requirements for protective systems).  In 2017, the regulation governing cave in protection (1910.655(a)(1)) alone was cited against more than 500 employers.  On top of OSHA citations, trenching and excavation fatalities have been a source of criminal prosecution by federal and state authorities.  To effectuate enforcement of this hazard, OSHA has released a new National Emphasis Program, replacing OSHA’s earlier Special Emphasis: Trenching and Excavation, CPL 02-00-069 (September 19, 1985).

In its news release on the Directive, Deputy Assistant Secretary of Labor for OSHA Loren Sweatt said “removing workers from and helping workers identify trenching hazards is critical….  OSHA will concentrate the full force of enforcement and compliance assistance resources to help ensure that employers are addressing these serious hazards.”  The NEP indicates that according to Census of Fatal Occupational Injuries (CFOI) data, there were 130 fatalities recorded in trenching and excavation operations between 2011 and 2016.  Private construction industry accounted for eighty percent, or 104, of those fatalities.  OSHA noted that it has a series of compliance assistance resources to help keep workers safe from trenching and excavation hazards.  The trenching and excavation webpage provides information on trenching hazards and solutions.

The 2018 NEP mandates that the Area Offices, beginning on October 1, 2018 roll out the Program with a “three-month period of education and prevention outreach.” During that period, OSHA will continue to respond to complaints, referrals, hospitalizations, and fatalities.

“Enforcement activities will begin after the outreach period and remain in effect until canceled.”  The NEP mandates intense new scrutiny of trenching and excavation operations.  The Program requires compliance officers (CSHOs) to initiate an inspection any time they observe a trench or excavation, whether observed during an inspection or merely in the course of their workday travel.  Accordingly, employing its Multi-Employer Worksite Doctrine, OSHA will be required to record and open an inspection against each employer who may have OSHA liability over trenching and excavation operations, including general contractors, subcontractors, and independent contractors.  Compliance officers must also promptly notify their Area Office of the trenching operation, state of the excavation, and any contractors involved.  They also must take photographs to document the worksite.

All enforcement activities by compliance officers must be recorded in OSHA’s online information system (OIS), creating a searchable database of trenching and excavation information.

Accordingly, construction contractors conducting trenching and excavation operations will face a greatly increased chance of an OSHA inspection and regulatory scrutiny, especially those operations that are located on major thoroughfares and high-profile locations or in areas likely to be travelled by OSHA inspectors.  Employers should consult with safety professionals and outside counsel to ensure compliance with the relevant OSHA Standards.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

Consistent with its threats to aggressively pursue employers who expose employees to workplace hazards, the Occupational Safety and Health Administration has cited an Illinois metal fabricator for twelve alleged violations, including one willful and six serious citations, and issued a $317,000 penalty under the national and regional emphasis program on primary metal industries.

OSHA also unilaterally placed this employer on its Severe Violator Enforcement Program (SVEP), which focuses on “recalcitrant employers that endanger workers by committing willful, repeat or failure-to-abate violations.” Under the SVEP OSHA may inspect any of the employer’s facilities or job sites — possibly multiplying the number of other citations that the employer may become subject to. We have previously blogged about OSHA’s SVEP program, including its recent “White Paper”, and the onerous procedures for removal from the SVEP program.

Employers of all kinds, but especially those with multiple facilities, are urged to treat every OSHA inspection with critical importance. What happens at one facility may put facilities across the country at risk. Don’t put the company in a situation where it becomes liable to numerous inspections across the country. Work diligently on the company’s safety and health policies and programs, implementation, and training to stay out of OSHA’s SVEP program.

By James L. Curtis and Craig B. Simonsen

OSHA has just released a new Instruction for its Field Operations Manual that describes policies and procedures for implementing a National Emphasis Program to identify and reduce or eliminate the incidence of adverse health effects associated with occupational exposure to isocyanates.

The Instruction, National Emphasis Program – Occupational Exposure to Isocyanates, CPL 03-00-017, is intended to combine “enforcement and outreach efforts to raise awareness of employers, workers, and safety and health professionals” of the health effects associated with occupational exposure to isocyanates. According to OSHA, “workers in a wide range of industries and occupations are exposed to at least one of the numerous isocyanates known to be associated with work-related asthma.”

Employers that are now under scrutiny by this new National Emphasis Program include:

  • Manufactures and handlers of polyurethane products, including polyurethane foam, insulation materials, surface coatings, car seats, furniture, foam mattresses, under-carpet padding, packaging materials, shoes, laminated fabrics, polyurethane rubber, and adhesives.

The Instruction provides a “site selection system” that targets multiple industries and will focus on evaluating inhalation, dermal, and other routes of occupational exposure to isocyanates. Appendix A provides the following industry list “where isocyanate exposures are known or likely to occur.”

Appendix A

Industries Where Isocyanate Exposures are Known or Likely Occur

  • Automotive – paints, glues, insulation, sealant and fiber bonding, truck bed lining
  • Casting – foundry cores
  • Building and construction – sealants, glues, insulation material, fillers
  • Electricity and electronics – cable insulation, PUR coated circuit boards
  • Mechanical engineering – insulation material
  • Paints – lacquers
  • Plastics – soft and hard plastics, plastic foam and cellular plastic
  • Printing – inks and lacquers
  • Timber and furniture – adhesives, lacquers, upholstery stuffing and fabric
  • Textiles – synthetic textile fibers
  • Medical care – PUR casts
  • Mining – sealants and insulating materials
  • Food industry – packaging materials and lacquers

       

Employers in these industry groups should look carefully at their current policies, procedures, and training programs to ensure compliance — or put themselves at risk of an OSHA citation.

By James L. Curtis and Craig B. Simonsen

Consistent with its threats to aggressively pursue employers who allegedly expose employees to hazardous chemicals and respiratory hazards, the Occupational Safety and Health Administration has cited a Wisconsin iron foundry for twenty-eight health violations, including three repeat citations, under the national and regional emphasis program on primary metal industries.

OSHA also unilaterally placed this employer on its Severe Violator Enforcement Program (SVEP), which focuses on “recalcitrant employers that endanger workers by committing willful, repeat or failure-to-abate violations.” Under the SVEP OSHA may inspect any of the employer’s facilities or job sites — possibly multiplying the number of other citations that the employer may become subject to!

The citations issued in this case were for allegedly exposing workers to crystalline silica dust and other hazards following an August 2012 inspection. The proposed penalties total $274,500. OSHA claims that the company is “compromising the safety of its workers by allowing previously cited deficiencies to continue….” “Employers who are cited for repeat violations demonstrate a lack of commitment to workers’ well-being.”

The three repeat violations listed by OSHA are for exposing workers to respirable dust containing silica above the recommended exposure level, unguarded conveyor tail pulleys, and for failing to apply energy isolating devices to equipment during service and maintenance.

Employers of all kinds, but especially those with multiple facilities, are urged to treat every OSHA inspection with critical importance. Don’t put the company in a situation where it becomes liable to numerous inspections across the country. Work diligently on the company’s safety and health policies and programs, implementation, and training to stay out of OSHA’s SVEP program!

By James L. Curtis and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) recently announced a new National Emphasis Program (NEP) for chemical facilities.  The NEP is intended to protect workers from catastrophic releases of highly hazardous chemicals. The NEP replaces OSHA’s 2009 pilot Chemical Facility National Emphasis Program (Pilot Program) which established policies and procedures for inspecting workplaces covered by OSHA’s process safety management (PSM) standard. The Pilot Program was very limited in geographic scope whereas this NEP expands the program nationwide, including State Plan States.

The NEP’s inspection process includes detailed questions designed to gather facts related to PSM requirements and verification that employers’ written and implemented PSM programs are consistent. The intent of the NEP is to conduct focused inspections at facilities randomly selected from a list of worksites likely to have highly hazardous chemicals in quantities covered by the standard. Employers with PSM covered ammonia refrigeration processes are the main target of the NEP, along with other covered facilities that OSHA believes to have known risks for potential catastrophic releases.

By James L. Curtis and 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 Mark A. Lies II and Elizabeth Leifel Ash

In the universe of complex OSHA regulations that govern day-to-day operations and have a direct effect on employee safety, it is easy for OSHA’s more prosaic recordkeeping and reporting requirements to get lost in the shuffle.  However, OSHA can issue citations to employers for failing to follow recordkeeping and reporting rules just as it can for machine guarding or lockout/tagout violations.  In fact, in 2009, OSHA introduced a National Emphasis Program (NEP) targeting injury and illness recordkeeping on the OSHA 300 Log, designed to ferret out violations of recordkeeping regulations.  While many employers will not be subjected to a NEP recordkeeping inspection, even a routine OSHA inspection will now focus on recordkeeping.  It is critical, therefore, for employers to keep up with changes to OSHA’s recordkeeping and reporting requirements and to be aware of state-specific variations depending on where the employer does business.   

INJURY AND ILLNESS NOTIFICATION REQUIREMENTS

A.        Federal

Part 1904 of OSHA’s regulations contains the employer’s obligations with respect to recordkeeping and reporting of occupational injuries and illnesses.  Under the current rules, an employer must notify OSHA within 8 hours of the death of an employee from a work-related incident, or the in-patient hospitalization of three or more employees as the result of a work-related incident

Recently, OSHA announced a proposal to revise its injury and illness notification requirements.  The proposed revisions would require employers to notify OSHA within 8 hours of any work-related in-patient hospitalization, regardless of the number of hospitalized employees, and within 24 hours of an amputation.  This proposed revision would result in a significant increase in the number of cases that would require notification to OSHA.  Because an OSHA inspection is often triggered by an employer’s notification of a fatality or catastrophe, an increase in the number of “reportable” events would also increase the number of OSHA inspections.  OSHA is accepting comments on the proposed rule through September 20, 2011. 

B.        State

Notwithstanding the federal regulations, many states that operate their own occupational safety and health programs have varying injury and illness notification requirements.  For example:

  • Washington:  Employers must notify the state agency where two or more employees are hospitalized due to a work-related incident. 
  • California and Utah:  Employers must report all “serious” injuries to the respective state agency. 
  • Kentucky:  Employers must report any amputation suffered by an employee within 72 hours of the incident. 

INJURY AND ILLNESS RECORDKEEPING

In addition to reporting fatalities and catastrophes, OSHA requires employers to maintain an OSHA 300 Log for all work-related illnesses and injuries that meet any of the following criteria:

  • The employee was off work for one or more days (excluding the date of the actual injury or the onset of illness) because of the injury or illness;
  • The employee experienced one or more days of restricted duty as a result of the injury or illness;
  • The employee received a job transfer as a result of the injury or illness;
  • The employee received medical treatment beyond first aid;
  • The employee experienced a loss of consciousness;
  • The employee experienced a “significant injury or illness” diagnosed by a physician or other licensed health care provider.

The purpose of keeping a log of work-related injuries and illnesses is to highlight potential workplace hazards that lead to severe injuries and illnesses.  The OSHA 300 Logs, therefore, provide a roadmap for an OSHA inspector in conducting an inspection.  If, for example, several injuries on the Log are related to a particular piece of machinery, the inspector will undoubtedly scrutinize that piece of machinery for potential hazards.  In some cases, OSHA will use a pattern of injuries as the basis for a willful citation, using the Log to show that the employer was on notice that a hazard existed and did nothing to correct the issue.  Employers, therefore, should pay close attention to the 300 Logs, particularly where multiple employees experience similar injuries in similar areas of a facility, as the Logs can indicate hazardous conditions. 

Most employers are probably already familiar with the illness and injury log, referred to as the OSHA 300 log.  However, the decision whether to record an injury or illness is often a difficult exercise, involving complicated issues of medical causation, issues in computing days away from work, and confusion over the definition of “medical treatment.” 

We therefore take this opportunity to provide some tips to avoid common pitfalls in injury and illness recordkeeping:

  1. Evaluate work-relatedness carefully.  This can be a particular challenge where an employee is suffering from a musculoskeletal disorder or respiratory illness that developed over time.  Where the cause of a particular injury or illness is unclear, the employer must evaluate the employee’s workplace activities to determine whether work activities were a discernible cause of the injury or illness.  Consultation with a physician is permitted and encouraged for difficult cases.
  2. Don’t confuse recordability with fault or blame.  The OSHA recordkeeping requirements are designed to be no-fault.  If an employee is injured at work in a bizarre accident, or even because of the employee’s own misconduct that violated the employer’s safety policies, the injury may still be recordable if it meets the definition of “work-related” and meets any of the other recording criteria.
  3. Be aware of employees who travel or work from home.  Don’t assume that just because an injury occurs “off site” that it is not recordable.  Employees who are injured while traveling for work or working from home may still be recordable. 
  4. Even pre-existing conditions may be recordable.  If an event or exposure in the workplace causes or contributes to the significant aggravation of a pre-existing condition, the injury or illness may be recordable.
  5. Don’t confuse workers’ comp with recordkeeping obligations.  While there is some overlap in these two systems (for example, the workers’ compensation insurer’s first report of injury or illness forms can be used for OSHA recordkeeping purposes), a recordable injury for OSHA purposes is not necessarily a compensable injury.  OSHA has very deliberately stated that recording an injury on the OSHA 300 log is not a concession by the employer that the injury is compensable, and vice versa.  29 C.F.R. §1904.0.
  6. “Light duty” may trigger the obligation to record.  If the employer keeps an employee from performing one or more of the routine functions of his or her job as a result of a work-related injury or illness, the injury or illness is probably recordable because it may constitute “restricted duty” or “job transfer” under the meaning of the regulations.  In some cases, employers can give “light duty” to an injured employee to prevent aggravation or additional injury without triggering the obligation to record the injury or illness, but only if the employee is fully capable of performing all of the routine functions of his or her job even with the injury or illness.

CONCLUSION

In light of OSHA’s National Emphasis Program on recordkeeping and the proposed revisions to the injury notification regulations, employers must be diligent in evaluating and properly recording work-related injuries and illnesses.  During a recordkeeping inspection, OSHA will request first aid logs and interview employees to find out about injuries and illnesses that may not be included on the employer’s OSHA 300 Log.  Accordingly, it is recommended that employers consider the following to ensure compliance with recordkeeping and notification requirements:

  • Establish a system through which employees are required to report injuries or illnesses in the workplace.  Inform employees that they will not be subject to retaliation or other negative action for reporting a work-related injury or illness.  Train supervisors to respond to employee reports of injuries and illnesses to ensure that employees receive prompt medical attention.  Ensure that injuries and illnesses are reported to the safety manager for evaluation of work-relatedness and recordability. 
  • Ensure that the person assigned to maintain the required OSHA records is trained to complete these forms accurately and in accordance with OSHA requirements. 
  • Keep supporting documentation of all injuries and illnesses reported by employees.  If the employer determines that the injury or illness is not recordable, document the basis for that determination. 
  • Ensure that OSHA is notified within 8 hours of any work-related fatality or the in-patient hospitalization of three or more employees.  If you operate in a state with its own occupational safety and health program, check for varying notification requirements. 
  • Evaluate OSHA 300 Logs to identify potential hazardous conditions or practices that have led to employee injuries.  Document any corrective action taken to address such conditions.

It is important for employers to not only provide a safe working-environment for employees, but to react appropriately when an injury or illness occurs. By accurately reporting and recording these occurrences, the employer can increase awareness of safety hazards with their employees to lower the risk of injuries and accidents in the future.