POSTED BY HEATHER MACDOUGALL ON MARCH 19, 2013

• Launched the new Severe Violator Enforcement Program to target the worst of the worst violators;
• Issued a record number of significant and egregious enforcement cases including the largest fine in OSHA history;
• Issued three major standards;
• Strengthened the protections of whistleblowers;
• Launched several new National, Regional, and Local Emphasis inspection programs.

Dr. Michaels revealed that in 2012, OSHA conducted nearly 41,000 Federal OSHA inspections, and another 51,000 with its State plan partners.  OSHA provided free on-site assistance to nearly 30,000 small and medium-sized businesses.  As OSHA moves forward,  Dr. Michaels noted, it will make increased use of its data to target high hazard workplaces.  Other areas of focus include protecting temporary workers and employees in hospitals and healthcare, which he stated have an "alarming high rate of worker injuries and illnesses."

Also in 2012, OSHA updated the Hazard Communication standard, which contains new label elements, a new safety data sheet format, and training requirements that must be completed by December 1, 2013.  Moving onto a another standard – albeit one in the early stages – Dr. Michaels reiterated that OSHA's Injury and Illness Prevention Program ("I2P2") remains its number one priority.   I2P2 is OSHA’s initiative to create a standard that would compel employers to find and fix hazards. 

Commenting on OSHA's continuing efforts to expand its Whistleblower Protections Program, Dr. Michaels stated that in 2012, the agency helped award nearly $27,000,000 to whistleblowers.  "But sanctioning employers who retaliate against workers, and making workers whole, are not our only goals," Dr. Michaels explained. "We are working hard to prevent retaliation from happening in the first place; we are sending a message to employers across the country that punishing workers for exercising their rights will simply not be tolerated."  In this regard, Dr. Michaels noted that employer incentive programs based on injury rates or reports can discourage workers from reporting injuries and that the agency is taking a close look at these programs to determine if they unlawfully discriminate or retaliate against workers or result in violations of OSHA's recordkeeping regulations.  Click here to view a copy of Dr. Michael's speech.

Clearly, the take away for employers is that it’s worth paying attention to those things to which OSHA is paying attention.  As we move forward in 2013, and OSHA's agenda under President Obama's second term, employers should ask themselves, "Are we ready?"  I will discuss more on this topic at the 18th Annual Akerman Labor & Employment Law Seminar.

POSTED BY HEATHER MACDOUGALL ON JANUARY 10, 2013

The federal government, including agencies such as OSHA, are required to give notice of significant regulatory activity by publishing a "semi-annual" regulatory agenda that outlines the status of on-going and planned regulatory activity.  Apparently, OSHA doesn't understand the meaning of "semi-annual" because it long delayed the publication of a regulatory agenda for 2012, waiting to the final days of the year, and just in time for 2013.  Congressional Republicans had been pressing the Administration for a regulatory agenda since late summer, believing the delay was because the President didn't want to stir up controversy in an election year.

However, the wait is finally over, and OSHA projects that during 2013, final agency action will be taken on 10 regulations, including:

• A new Confined Spaces in Construction standard (by July 2013);
• An updated Electric Power Transmission and Distribution standard (by March 2013);
• Eliminating many of the incentives of the Cooperative Programs (by April 2013);
• Consensus Standard Update – Signage (April 2013);
• Vertical Tandem Lifts (May 2013);
• Updating the Walking Working Surfaces standard, i.e., Fall Protection (by August 2013);
• Changes to the Injury & Illness Recording/Reporting requirements (by May 2013), including moving from the SIC system to the NAICS and revising the criteria to increase the incidents that are required to be reported directly to OSHA;
• Three new standards for whistleblower enforcement.

Additionally, OSHA has proposed regulations in the pipeline that will require more time to be completed:

• Review/look back of OSHA Chemical standards;
• New Beryllium standard;
• New Bloodborne Pathogen standard;
• New comprehensive Combustible Dust standard;
• New Injury & Illness Prevention Program rule (I2P2), which has been a top priority for OSHA (targeted for SBREFA by end of this month and NPRM to be published by end of 2013 – both which are nearly impossible to meet since SBREFA has not started yet).

Although the timelines laid out in the regulatory agenda often are delayed, the list does provide the public some insight into what priorities OSHA has set for itself.  If you have any questions regarding any specific proposal, please contact your legal counsel.

POSTED BY RICHARD D. TUSCHMAN ON MARCH 5, 2012

The Occupational Safety and Health Administration announced last week a “major restructuring” of its Office of the Whistleblower Protection Program that reflects an increased priority for federal whistleblower protections.

The program will now report directly to the agency's Office of the Assistant Secretary instead of to its Directorate of Enforcement Programs, according to OSHA’s press release.

So what’s the big deal, you say?  It’s just a bureaucratic reshuffling in an agency that only addresses workplace safety issues, right? 

Well, not exactly.  While OSHA is charged with enforcing the Occupational Safety and Health Act and its whistleblower provisions, Congress has also empowered OSHA to enforce the whistleblower provisions of twenty other federal laws, including the Sarbanes-Oxley Act, the Consumer Financial Protection Act of 2010 (part of the Dodd-Frank Act), and the Surface Transportation Assistance Act.

So when OSHA makes a change that “represents a significantly elevated priority status for whistleblower enforcement,” as OSHA’s press release states, that is a big deal. 

It remains to be seen what the increased priority for whistleblower protection means in practice.  But among the changes, according to news accounts, is that OSHA will be adding investigators and strengthening the training of its investigators.  For employers, that likely means more “cause” findings and more penalties.

We will keep you posted as we learn more.

POSTED BY RICHARD D. TUSCHMAN ON FEBRUARY 20, 2012

It’s never good news when the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) cites your business for violations. But there’s bad news, and really bad news, and a recent case in South Florida illustrates the difference.

On February 8, 2012, OSHA announced that it cited Hialeah-based Bennett Electrical Services Co. Inc. for three safety violations after an employee was injured and hospitalized as a result of a defective truck-mounted crane. According to OSHA, while moving concrete traffic light poles with the crane, the boom of the crane separated from the truck, striking the operator in the head, which knocked him off the operator's station and onto the ground.

OSHA cited the contractor for two serious violations and $8,400 in proposed fines for allowing modifications to be made to the truck-mounted crane without the written approval of the manufacturer and allowing the crane to continue to be operated despite known deficiencies. That was the bad news.

The really bad news was that OSHA also cited the contractor for a willful violation and a $42,000 penalty for failing to conduct annual inspections on a truck-mounted crane. OSHA contends that the employer was aware of safety concerns raised by OSHA based on previous citations issued in 2002 and 2006.

So what’s the difference between serious and willful violations?

Section 17 of the Occupational Safety and Health Act provides that “a serious violation exists where there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” Serious violations carry a penalty of up to $7,000 for each violation.

A willful violation exists “where an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health.” OSHA’s Field Operations Manual states that “[i]t is not necessary that the violation be committed with a bad purpose or malicious intent to be deemed ‘willful.’ It is sufficient that the violation was deliberate, voluntary or intentional as distinguished from inadvertent, accidental or ordinarily negligent.” Willful violations carry a penalty may of not more than $70,000, but not less than $5,000, for each willful violation.

Penalties for violations of the Act, including those classified as other-than-serious, are set forth at Section 17 of the Act. An employer’s right to negotiate and contest OSHA penalties will be discussed in future posts.

Please see the following links for the announcement and OSHA penalties:

US Department of Labor's OSHA cites South Florida contractor...

SEC. 17. Penalties