Tag Archives: OSHA


Every year, the federal Occupational Safety and Health Administration publishes a list of its top 10 most frequently cited alleged violations from the previous year.  The 2017 top 10 violations were recently announced by Patrick Kapust, Deputy Director of OSHA’s Directorate of Enforcement Programs, at the National Safety Council (NSC) Congress & Expo 2017 in Indianapolis:

  1. Fall Protection in Construction — 6,072 violations (includes failure to provide fall protection for unprotected edges and open sides in residential construction and failure to provide fall protection on low-slope roofs).
  2. Hazard Communication — 4,176 violations (includes failure to have a written hazard communication program and failure to provide employee access to safety data sheets).
  3. Scaffolding — 3,288 violations (includes improper access to surfaces and lack of guardrails).
  4. Respiratory Protection — 3,097 violations (includes failure to establish a written respiratory protection program and failure to provide medical evaluations.).
  5. Lockout/Tagout — 2,877 violations (includes failure to provide employee training and failure to conduct periodic inspections).
  6. Ladders in Construction — 2,241 violations (includes improper use of ladders, damaged ladders, and using the top step).
  7. Powered Industrial Trucks — 2,162 violations (includes failure to provide employee training and failure to provide refresher training).
  8. Machine Guarding — 1,933 violations (includes failure to guard points of operation).
  9. Fall Protection—Training Requirements — 1,523 violations (includes failure to train employees in identifying fall hazards and proper use of fall protection equipment).
  10. Electrical — Wiring Methods — 1,405 violations (includes using temporary wiring in lieu of permanent wiring).

Take Home For Employers

According to OSHA, the violations on this list rarely change from year to year; therefore OSHA urges employers to consider this list a starting point for their workplace safety program.

2016’s Top 10 OSHA Citations Have Been Released

Every year, the federal Occupational Safety and Health Administration publishes a list of its top 10 most frequently cited alleged violations from the previous year and the 2016 top 10 violations have recently been released:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

Take Home For Employers

According to OSHA, the violations on this list rarely change from year to year; therefore OSHA urges employers to consider this list a starting point for their workplace safety program.

Preventing Retaliation Is a Priority for OSHA

Earlier this month, OSHA released guidance materials (“Recommended Practices for Anti-Retaliation Programs”) intended to help employers create workplaces that are free of retaliation. These materials are a part of the OSHA Whistleblower Protection Program, which protect employees against retaliation for raising health, safety, and potential violation concerns, and provide a framework to help employers establish an anti-retaliation program.

The materials explain what OSHA dubs the “Five Key Elements to an Effective Anti-Retaliation Program”:

  1. Management leadership, commitment, and accountability
  2. System for listening to and resolving employees’ safety and compliance concerns
  3. System for receiving and responding to reports of retaliation
  4. Anti-retaliation training for employees and managers
  5. Program oversight

and also provide steps on how to implement an anti-retaliation program.

OSHA warns that the “document is advisory in nature and informational in content. It is not mandatory for employers, and does not interpret or create legal obligations.” In addition, OSHA clarifies that “this guidance is not intended to advise employees about their rights or protections under any whistleblower statute enforced by OSHA or any other government agency.”

OSHA Updates Walking-Working Surfaces Rule

OSHA has issued a final rule which updates the general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The final rule addresses the following topics:

  • Establishing new and revised standards addressing fixed ladders, rope descent systems, and fall protection systems;
  • Establishing requirements on the design, performance and use of personal fall protection systems; and
  • Requiring employers to train employees on identifying and minimizing fall hazards, using fall protection systems and maintaining, inspecting and storing fall protection equipment.

Under the new rule, employers are able to choose (from a list of acceptable options) the fall protection system that works best for their workplace, instead of simply requiring the use of guardrail systems. Acceptable options include personal fall arrest systems, safety new systems, ladder safety systems, travel restraint and work position systems.

The new rule also allows employers to use Rope Descent Systems (RDS) and adds a 300-foot height limit for their use. In order to use these systems, employers must affirm in writing that permanent building anchorages used for RDS have been tested, certified, and maintained as capable of supporting 5,000 pounds for each worker attached.

In addition, the new rule sets standards for ladders. Specifically, all ladders must be able to support their maximum intended load. Mobile ladder stands and platforms must be able to support four times their maximum intended load. With respect to fixed ladders that extend more than 24 feet, employers must also work towards replacing cages or wells with safety or personal fall arrest systems.

The rules also set the following standards for portable ladders:

  • The rungs and steps on portable ladders must be slip resistant;
  • portable ladders used on slippery surfaces must be secured and stabilized;
  • portable ladders cannot be moved, shifted, or extended while a worker is on them;
  • top steps and caps of stepladders cannot be used as steps;
  • portable ladders cannot be fastened together to provide added length unless designed for such use; and
  • portable ladders cannot be placed on boxes, barrels, or other unstable bases to obtain added height.

Finally, employers must inspect each ladder before initial use in a work shift to identify defects that could cause injury.

The final rule becomes effective on January 17, 2017. Following the effective date, employers should be aware that some requirements in the new rule have compliance dates after the effective date including:

  • Ensuring exposed workers are trained on fall hazards and the use of fall protection equipment (6 months),
  • Inspecting and certifying permanent anchorages for rope descent systems (1 year),
  • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years),
  • Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years), and
  • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).

It is recommended that all employers review the new rule and start working to meet the above-listed compliance deadlines.

OSHA Issues New guidance regarding incentive, disciplinary and drug-testing programs

On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In addition, OHSA also published additional guidance materials which provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios.

Under the new rule (which goes into effect on January 1, 2017), employers are required to establish reasonable procedures for reporting a work-related injury or illness. The new rule also prohibits employers from retaliating or taking adverse action against employees for reporting work-related injuries or illnesses.

With the new rule clearly prohibiting retaliation, there was concern regarding how the new rule would impact incentive, disciplinary and drug-testing programs. In the newly released materials, OSHA expressly clarifies that “the rule does not ban appropriate disciplinary, incentive, or drug-testing programs” and (through the example scenarios) explains what programs would be considered “appropriate.”

Disciplinary Programs

With respect to disciplinary programs, OSHA has stated that “the rule does not prohibit disciplinary programs. However, employers must not use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.”

According to OSHA, the following types of disciplinary programs would violate the new rule:

  • Automatically suspending an employee who reports a work-related injury.
  • Assigning employees points that have negative employment consequences for reporting a work-related injury.
  • Pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report. Here, OSHA would look to see if other employees are also disciplined for violating the same safety rule in cases where a violation of that safety rule does not result in any injury.
  • Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.

Conversely, OSHA clarified that the following disciplinary programs would be permissible:

  • an employer who disciplines an employee for by-passing a guard, contrary to the employer’s safety policies, even when that employee is injured would not be a violation of the new rule
  • an employer who disciplines employees for not reporting work-related injuries “immediately” or “as soon as practicable” is permissible where employers allow sufficient time for employees to realize they have suffered a work-related injury.

Finally, employers must remember one thing with any disciplinary program, it must be applied consistently to all employees.

Incentive Programs

With respect to incentive programs, OSHA has stated that “employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness.”  Instead, OSHA recommends incentive programs that reward for employee participation in safety program activities and evaluations, completion of employee training, and safety walkthroughs and identification of hazards.

Drug-Testing Programs

With respect to drug testing programs, OSHA has stated that “drug testing conducted under a state worker’s compensation law or other state or federal law” does not violate the new rule. OSHA also clarifies that when evaluating a drug testing program, its “central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.”

For example, an employee who drug tests an employee who reported an injury he sustained as by-stander being drug tested would be in violation of the rule because the injury could not possibly have been caused by drug use. Conversely, drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not be in violation of the rule because the employees “conduct – the manner in which he operated the forklift – contributed to his injury, and because drug use can affect conduct.” “Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.”

Finally, OSHA clarified that “OSHA will consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.  Therefore, at this time, OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.”

Recommendation for employers

It is recommended that employers who have these type of programs in place review the guidance materials released by OSHA and determine whether their programs comply with the new rule.

Wyoming OSHA Penalties to Increase in 2017

The Wyoming Department of Workforce Services, Occupational Safety and Health Administration division recently announced that effective February 1, 2017, the maximum penalties for OSHA violations will increase in accordance with the below penalty structure.

New Penalty Structure

  • “Other Than Serious” Violation – A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.
    • New Maximum: $12,471 per violation
    • Current Maximum Penalty: up to $7,000 for each violation.
  • “Serious” Violation – A violation where there is substantial probability that death or serious physical harm could result, and the employer knew of, or should have known of, the hazard.
    • New Maximum: $12,471 per violation
    • Current Maximum Penalty: up to $7,000 for each violation.
  • “Failure to Abate” Violation – Failure to correct a previously cited violation.
    • New Maximum: $12,471 per day beyond the abatement date for each violation
    • Current Maximum Penalty: up to $7,000 each day beyond the abatement date for each violation.
  • “Willful” Violation – A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it.
    • New Maximum: $124,709 per violation
    • Current Maximum Penalty: up to $70,000 per violation.
  • “Repeat” Violation – A violation of any standard, regulation, rule, or order where, upon reinspection, a substantially similar violation is found.
    • New Maximum: $124,709 per violation
    • Current Maximum Penalty: up to $70,000 per violation.

This increase in penalties was accompanied by the release of a new Health and Safety Protection on the Job Poster, which employers must post in a prominent location in the workplace.

Special Zika Virus Guidance Issued by OSHA

The Occupational Safety and Health Administration (OSHA) recently released guidance materials (“Zika Virus Protection for Outdoor Workers – OSHA Quick Card” and “Interim Guidance for Protecting Workers from Occupational Exposure to Zika Virus – OSHA Fact Sheet”) advising employers and workers how to prevent exposure to the Zika virus in the workplace. The Zika virus is a mosquito-borne virus; therefore, an employer’s outdoor workers may be at risk of contracting this virus.

These guidance materials set forth general practices employers and workers can do to reduce risk of exposure to the Zika virus in their workplace. These techniques include the following:

  • Employers should inform workers about their risks of exposure.
  • Employers should provide workers insect repellants and encourage their use. Workers should use the repellants.
  • Employers should provide workers with clothing that covers their hands, arms, legs, and other exposed skin and encourage them to wear the clothing. They also should consider providing workers with hats with mosquito netting that covers the neck and face. Workers should wear the provided clothing, as well as socks that cover the ankles and lower legs.
  • In warm weather, employers should encourage workers to wear lightweight, loose-fitting clothing, which provides a barrier to mosquitos. Workers should wear this type of clothing.
  • Employers and workers should eliminate sources of standing water (e.g., tires, buckets, cans, bottles, and barrels), which are considered mosquito breeding areas. Employers should train workers to recognize the importance of getting rid of these breeding areas at worksites.
  • If requested, employers should consider reassigning to indoor tasks any female worker who indicates she is pregnant or may become pregnant, as well as any male worker who has a sexual partner who is pregnant or may become pregnant. Workers in these circumstances should talk to their supervisors about outdoor work assignments.
  • Workers should seek medical attention “promptly” if symptoms from infection develop.

It is recommended that all employers review these guidelines to determine the risks of their outdoor workers contracting Zika virus.

New Electronic Recordkeeping Requirements released by OSHA

The Occupational Safety and Health Administration (OSHA) has issued a final rule that amends its recordkeeping regulations (29 CFR §1904, et seq.). This amendment requires certain employers to submit OSHA 300 Logs, OSHA 301 forms, and OSHA 300A summaries to the agency electronically.

The obligation to submit records electronically depends on the employer’s size and industry. Specifically,

  • Employers with 250 or more employees (including part-time, seasonal or temporary workers) in each establishment (i.e. a single physical location where work is performed) are required to electronically submit their 300, 300A and 301 forms to OSHA on an annual basis;
  • Employers with more than 20 but less than 250 employees in certain identified industries (including, but not limited to construction, manufacturing, utilities, and agriculture) are required to electronically submit their 300A form on an annual basis;
  • Employers who receive notification from OSHA are required to submit their 300, 300A and 301 forms to OSHA electronically.

The effective date for this new filing requirement is January 1, 2017. After this date, records must be submitted electronically in accordance with the following guidelines:

  • July 1, 2017 – affected employers must submit all Form 300A summaries electronically.
  • July 1, 2018 – affected employers must submit all 300 Logs, 301 Forms, and 300A summaries electronically.
  • January 1, 2019 – The deadline for electronic submissions changes from July 1st to March 2nd.

The new regulations also include new anti-retaliation provisions. These new provisions apply to all employers and require them to take the following steps:

  • Establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.
    • A procedure that would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness is not considered reasonable.
  • Inform each employee of the procedure for reporting work-related injuries and illnesses.
  • Inform each employee that
    • Employees have the right to report work-related injuries and illnesses and
    • Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illness.
  • Refrain from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness.

In addition to the new anti-retaliation provisions, the regulations establish a new cause of action for employees, wherein employees can file a retaliation complaint with OSHA compliance personnel, rather than filing a Section 11(c) complaint.

The new anti-retaliation provisions go into effect on August 10, 2016.

Recommendations for employers

 The new OSHA regulations affect all employers in one way or another. It is recommended that all employers review the amended OSHA regulations and determine which aspects of the amended regulations affect their business. To assist with this analysis, OSHA has developed a guidance page regarding the final rule, which employers should review.

In addition, all employers need to take immediate steps to comply with the anti-retaliation provisions, which go into effect at the beginning of August 2016.

OSHA Releases Guidance Documents Relating to Temporary Workers

In recent months, the Occupational Safety and Health Administration (“OSHA”) has been focusing on temporary workers and how they are treated in the workplace. In OSHA’s view,

Host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee and are therefore jointly responsible for [a] temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements.

~Dr. David Michaels, the Administrator of the Occupational Safety and Health Administration)

To help employers (i.e. staffing agencies and the host employer) understand their responsibility towards their temporary workforce, OSHA has released guidance materials relating to safety and health training and hazard communication to temporary workers — Temporary Worker Initiative (TWI) Bulletin No. 4 – Safety and Health Training and Temporary Worker Initiative (TWI) Bulletin No. 5 – Hazard Communication.

In the safety and health training guidance, OSHA makes it clear that both the staffing agency and the host employer are responsible for providing proper training to the temporary workforce.

Similarly, under the hazard communications guidance, OSHA affirms that both the staffing agency and the host employer are responsible for ensuring temporary workers are informed and trained regarding exposure to hazardous chemicals

The entity responsible for providing the training depends on the type of training to be provided. The division of training responsibility is as follows:

  • The host employer is responsible for
    • Providing site-specific training and hazard communications. This training should be identical or equivalent to the training given to the host employer’s own employees.
  • The staffing agency is responsible for
    • Providing generic safety and health training (including hazard communications training) and
    • Ensuring that the host employer is providing its temporary employees with proper site-specific training,

Recommendations for Employers

Staffing agencies and host employers must recognize that OSHA will treat both entities as being jointly responsible for temporary workers’ safety and health. While the host employer generally has primary responsibility for training and communication regarding site specific hazards, the staffing agency must “touch base” with the host employer and verify that the host employer is meeting these requirements. It is recommended that the staffing agency and the host employer clearly set forth the division of training responsibilities in their contract.

Available Now — OSHA’s New Whistleblower Investigations Manual

Last April, OSHA released its “Clarification of the Investigative Standard for OSHA Whistleblower Investigations,” which was intended to provide employers with guidance relating to how OSHA conducts a whistleblower investigation. As a part of that “clarification,” OSHA indicated that new (revised) whistleblower investigations would be released in the future. Fast-forward approximately one year and that promise is now a reality. OSHA has released its new Whistleblower Investigations Manual.

This new manual has made an important change in the whistleblower investigation process. Investigators are now instructed that the burden of proof is simply whether “OSHA has reasonable cause to believe a violation occurred.” This is a shift from OSHA’s previous instructions, which were that investigators were to dismiss a case if complainant could not establish the prima facie elements of the relevant whistleblower statute.

Under this new position, investigators no longer consider whether the complainant can establish the elements of her claim, but instead they are to consider whether a reasonable judge could rule in complainant’s favor after weighing all the evidence. This shift may make it more difficult for OSHA investigators to find that a violation has occurred.

Recommendation for Employers

While the manual is written as guidance for OSHA investigators, it is also bears significance for employers who may potentially be involved in a whistleblower investigation. We recommend that employers review the new manual to familiarize themselves with the new investigative process.