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Safety Sense April 2023

On Behalf of | May 24, 2023 | Firm News

This year’s Safety & Health Day will be held on Wednesday, May 24, 2023 at Owen’s Community College – Center for the Performing Arts. Doors open at 7:30am with a full day of presentations on various workplace safety topics!  Attorney Carl Habekost will be presenting with attorney Ray Arce (Marshall & Melhorn) on the topic of “fitness for duty and legal aspects for the safety professional”. Registration is open until May 23, 2023. Click here to register today!

Union Participation in OSHA Inspections at Non-Union Workplaces

OSHA recently announced its intent to publish a notice of proposed rulemaking to amend 29 CFR 1903.8(c) involving the rights of non-employees to participate in OSHA inspections.  Employers may remember that OSHA attempted in 2013 to grant the ability of union representatives to participate in OSHA inspections at non-union workplaces. This policy was turned back by the Trump Administration.  But, as the colloquial saying goes, “the more things change, the more they stay the same.”

The issue of non-employee union representatives attending an OSHA inspection arose by way of the “Fairfax Memo” in 2013.  The Fairfax memo was a response to an inquiry by a labor union about inspection rights asking whether workers at a worksite without a collective bargaining agreement could designate a person affiliated with a union to act on their behalf as the walkaround representative. The applicable regulation is 29 CFR. 1903.8(c) stating in pertinent part: “The representative(s) authorized by employees shall be an employee of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”  The Fairfax memo interpreted this relatively clear language in the regulation to mean that “…although the regulation acknowledges that most employee representatives will be employees of the employer being inspected, it is OSHA’s view that non-employee representatives are ‘reasonably necessary’ when they will make a positive contribution to a thorough and effective inspection.”.  The memo further asserted that the employee representative could be any non-employee person including community organization members or union officials.  OSHA clarified that non-union employees may have a union representative act as their employee representative if that person will make a positive contribution to the inspection.  Industry representatives filed a legal challenge to the Fairfax Memo’s interpretation of 29 CFR 1903.8(c).  However, the courts did not address the legal challenge because the Trump Administration rolled back the controversial 2013 interpretation.

Recently, OSHA announced plans to publish a notice of proposed rulemaking to clarify the right of workers and certified bargaining units to accompany an OSHA inspector during the inspection process and walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the compliance Safety and Health Officer such persons are reasonably necessary to an effective inspection. If adopted, this amendment will change the inspection landscape. Therefore, non-union employers should be prepared for the possibility that union representatives will gain, through participation in an OSHA inspection, useful knowledge with which to organize a campaign. As such, we recommend employers consider the following:

  1. Establish a safety committee with both non-supervisory employees and management personnel as members.  The employer should publicize the names of the safety committee members to all employees and encourage everyone to reach out to the committee members with questions or concerns.  Members of an active and effective safety committee are a far better option to assist the Compliance Safety and Health Officer with an inspection than an outside union representative who does not work for the company.
  2. Prepare for a potential OSHA inspection by creating an inspection team and training the team members on the appropriate response to OSHA inspection. Every member of the OSHA inspection team should know exactly what to do once the OSHA official arrives. The inspection team should be trained on each facet of an OSHA inspection from the opening conference to the closing conference.
  3. The company should decide on a search warrant strategy. In that regard the opening conference is important relative to defining the scope of the inspection. If the OSHA Compliance Safety and Health Officer intends to bring non-employees along for the inspection, the company should consider requesting a search warrant and then opposing the search warrant. This is especially important if the company suspects that a non-employee union representative is there for the sole purpose of organizing as opposed to improving the quality of the safety inspection.

At present, non-employee union representatives do not have the legal right to participate in an OSHA inspection at a non-union facility. However, as outlined above, this may change in the near future. We will keep you apprised of any new developments involving this issue.  Please contact a member of our Labor and Employment Section with questions or concerns.

OSHA Expands the “Instance-by-Instance” Citation Policy

On January 26, 2023, OSHA announced two enforcement memoranda that were issued to Field Offices and State OSH plans.  First, OSHA intends to expand the circumstances under which the “Instance-by-Instance” citation policy will be used.  Second, OSHA made it clear that it now “discourages” the grouping of similar citations under a single penalty. The result of these memoranda is an increase in the number of citations and an increase in penalties for employers.

Instance-by-instance, or per-instance enforcement, essentially multiplies the penalties. For example, assume that a construction company failed to ensure that 5 employees at a job site were wearing hard hats.  An OSHA Compliance Safety and Health Officer observed this violation of the Personal Protective Equipment regulation during an inspection. Normally, OSHA would issue a single citation with a single penalty for failure to comply with the applicable Personal Protective Equipment regulation.  However, the instance-by-instance or per-instance policy allows OSHA to issue 5 separate citations with 5 separate penalties for each of the 5 employees observed without a hardhat at the job site.

Historically, this policy was known as OSHA’s Egregious Enforcement Policy. OSHA limited the use of this policy to circumstances involving bad conduct on the part of an employer. The policy for decades was based on the following criteria:

  • Violations that resulted in a fatality or multiple hospitalizations;
  • The employer’s history showed violations that resulted in persistently high rates of injuries;
  • The employer had an extensive history of prior citations;
  • The conduct of the employer revealed an intentional disregard of OSHA regulations; or
  • The inspection revealed multiple violations which significantly undermined the effectiveness of a safety program.

Further, in the past OSHA only used the instance-by-instance citation policy if the regulation being cited involved an individual act or required separate compliance duties rather than a general course of action. For example, an individualized duty involving personal protective equipment is found in CFR 1910.133(a)(1) as follows “…the employer shall ensure that each effected employee uses appropriate eye or face protection when exposed to eye or face hazards…”. The regulatory standard identifies a per employee separate duty, and therefore, separate citations would be permitted per employee to whom the employer failed to meet the duty. The limitations on the instance-by-instance citation policy have been in place for more than 30 years. The policy has been reserved for truly bad behavior and egregious situations.

Apparently, however, OSHA intends to lower the threshold for utilization of the instance-by-instance citation policy. Based on OSHA’s new enforcement guidance, employers can expect possible instance-by-instance citation in the following situations:

  1. The citations are related to a fatality or catastrophe.
  2. The employer has received a willful, repeat, or failure to abate violation within the last 5 years.
  3. The employer failed to report a fatality, in-patient hospitalization, amputation, or loss of an eye pursuant to OSHA reporting regulation found at CCFR 1904.39.

Simultaneous with OSHA’s new guidance regarding the instance-by-instance citation policy, OSHA also issued a new enforcement memorandum discouraging the field offices from “grouping” similar citations. The goal according to OSHA in discouraging the grouping of citations is to “achieve a deterrent effect. In particular, the agency may refrain from grouping violations where there is evidence that worksite conditions giving rise to the violations are separate and distinct, or where different conduct gave rise to the violations. Regional Administrators and area directors may therefore exercise discretion where the evidence allows violations to be cited separately without grouping, when appropriate to achieve adequate deterrent effect.” The guidance also directs the field offices to consider citing violations separately where there are differing abatement methods, where each violative condition may on its own result in death or serious physical harm, or where each violative condition exposes employees to a related but different hazard.

These changes reflect aggressive enforcement intentions at OSHA. The current data reveals that over the past 2 years, there has been a 15% increase in OSHA’s penalty authority; and in fiscal year 2022, the agency set a record for the most $100,000 plus enforcement actions.

We strongly recommend that employers focus attention and resources on creating and improving effective safety programs. Compliance with OSHA regulations is now essential to maintaining a profitable organization. Please contact our Labor and Employment section with any questions or concerns.

5-Year Study of Serious Injuries & Fatalities (SIFs) Reveals Insights

ISN, the global leader in contractor and supplier information management, released its latest Serious Injuries and Fatalities (SIFs) White Paper to further its mission of promoting safer work environments for everyone.

ISN analyzed more than 94,000 recordable incidents from 2017-2021 which showed more than 20,000 SIFs cases consisting of more than 17,000 hospitalizations, 2,773 amputations and 677 fatalities.

Highlights from the SIFs White Paper include:

  • Leading causes of SIFs: Across industries, the leading cause of SIFs over the past five years has consistently been contact with an object or equipment. 2021 shows amputations listed as a top three SIF event, making up 16% of all SIFs for that year, versus 13% in 2018.
  • SIF rate heavily fluctuates, dropping significantly in 2021: Starting with a baseline in 2017, the SIF rate increased in 2018, decreased 17% in 2019, spiked again in 2020, and sharply decreased by 35% in 2021. 2021 showed a decline in both overall count and rate for the first time since ISN has been analyzing SIF data.
  • Upper extremities are the most affected body part: In past iterations of the SIFs White Paper, lower extremities were the most commonly affected body part. ISN’s most recent analysis shows upper extremities surpassed lower extremities as the most affected over the last five years. By identifying the most common type, nature and affected body part within an organization, companies can focus time and resources into mitigating strategies that have the most impact in reducing SIFs.
  • January emerges as an increasingly dangerous month: A higher number of SIFs continue to be seen during the months of July and August as found in previous SIFs reports; however, the new data now includes the month of January as having elevated cases. This could be attributed to the return of workers after an extended holiday break, with possible factors such as low energy level and morale, lack of focus and busy schedules increasing injuries on the first days back at work.
  • Utilities sector shows significant SIFs decline: The Utilities sector has seen a significant and sustained decline of 72% in its SIF rate from 2017 to 2021.
  • The industries with the highest SIF rates:
    1. Construction
    2. Manufacturing
    3. Transportation and Warehousing
    4. Administrative Support & Waste Management and Remediation
  • COVID-19 led to minimal recorded SIFs incidents: COVID-19 related data collected from 2020 to 2021 shows only 37 COVID-19 related cases were classified as a SIF, which resulted in 25 cases involving days away from work and 12 total fatalities. The data shows COVID-19 did not have a widespread impact on SIF rates for many companies.

“As SIFs continue to impact workforces, companies and contractors must regularly collect and analyze SIF-related data and use insights to adjust their strategies to prevent future incidents,” said Brian Callahan, President and Chief Operating Officer at ISN.

“Our analysis found that contractors who implemented a Process Safety Management or Hazard Communication Program experienced a 27-29% lower SIF rate, further illustrating the value of insights like these and the support that data-driven tools from ISN provide in helping workers return home safe each day.”

To download the SIFs White Paper and view the complete findings, click here.

Prepared by David Varwig, MA Org. Mgt., CSP-retired, CUSA for Elsmart Safety Management