Workplace Violence Gains Formal OSHA Investigation Procedures

On September 8, OSHA issued Directive CPL 02-01-052, which for the first time establishes procedures for investigating workplace violence complaints.

Two industry groups get singled out for particular focus:

Healthcare and Social Service Settings

This category covers a broad spectrum of workers who provide healthcare and social services in psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities, residential facilities and long-term care facilities. Workers in these fields include physicians, registered nurses, pharmacists, nurse practitioners, physicians’ assistants, nurses’ aides, therapists, technicians, public health nurses,  healthcare workers, social and welfare workers, security personnel, maintenance personnel and emergency medical care personnel.

Late-Night Retail Settings

This includes entities such as convenience stores, liquor stores and gas stations. Factors that put late-night retail employees at risk include the exchange of money, twenty-four hour operation, solo work, isolated worksites, the sale of alcohol and poorly-lit stores and parking areas.

In determining whether to conduct an investigation, OSHA personnel are to take into consideration known risk factors as identified by NIOSH; whether it is in one of the high risk industries identified by OSHA (see above) and whether feasible abatement methods exist to address the hazard(s).

There is no specific violence in the workplace standard, but there is the general duty clause, and the Directive mentions some other standards that might come into play:

• 29 CFR 1904 Recording and Reporting Occupational Injuries and Illnesses.
• 29 CFR 1910.151 Medical Services and First Aid.
• 29 CFR 1926.23 First Aid and Medical Attention
• 29 CFR 1926.35 Employee Emergency Action Plans

This Directive is a must reading for these two industries and for all those who are on your crises management team . (You do have a crises managment plan and team, don't you?)

DOL Help for Employer On OSHA Reporting

Last week I posted about DOL's new app for employees to keep records of their hours worked, so to be fair, the DOL does not limit its computerized assistance to employees. It also has on line assistance designed to help the employer community comply with their obligations under various statutes.

Although not as cool as an "app" the DOL's various elaws are helpful. The most recent, and what prompted today's post, is one to help an employer know if an incident is recordable under OSHA. To walk you through the regulations in a systematic form, check out theOSHA Recordkeeping Advisor.

For an employer not sophisticated in OSHA requirements, it's a good first step.

No Becker Recess Appointment, At Least Not This Recess

Or at least that would seem to be the most likely course of action based on a statement released by President Obama after the Senate confirmed 27 appointments by voice vote before leaving for the week long's President's Day Holiday. Senate Confirms 27 Obama Nominees . From the White House:

While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess. If they do not act, I reserve the right to use my recess appointment authority in the future.

Although I could have easily missed someone, it appears that the only labor and employment related appointment in the group confirmed was Cynthia L. Attwood, of Virginia, as a member of the Occupational Safety and Health Review Commission.

Medical Marijuana and Workers Comp: Odd Bedfellows at Best

Just yesterday I was having a discussion with someone about the increasing liberalization of attitudes toward marijuana use and a lot of the impetus, although certainly not all, seems tied to medical use. Over at Lynch Ryan's blog, Workers' Comp Insider, they have noticed too, and are quick to point out that it is going to make for some interesting workplace issues, One Toke Over the Line.

This story is a follow up to last week's post, The current buzz on medical marijuana and the workplace.

It also gives me a chance to try out one of blogger's new functions, posting at a scheduled time.

OSHA Ends the Year With a Bang and a Black Corvette

It's as good a way to close the decade as any. When Brocon Petroleum failed to pay an agreed judgment that had been entered in a 2008 lawsuit against the firm by the Department of Labor, federal marshall's seized a 1992 black corvette at the home of Richard Kohler, president of the company. The suit had alleged that Brocon had terminated an OSHA whistleblower. See Howell firm ignored judgment; boss's car seized. The full press release from OSHA is here.

According to a report about the lawsuit when it was filed, Scott Shevlin was fired the same day that OSHA investigated an anonymous complaint about safety practices at the work site. Feds allege worker fired for complaint about firm .

Thanks to all who have been readers this year, and this decade for that matter.  It has been an interesting time to be a labor and employment lawyer.

And for 2010 forward? My prediction, if I am still writing this blog 10 years from today, I will be accurate in making the same statement.

Happy New Year.

More Government Talk: This Time to Your Employees

That's what will be happening if the GAO's recommendation issued last week takes place. While studying how OSHA's Records Audit Process could be improved, one of their recommendations is that the Secretary of Labor "require inspectors to interview workers during records audits, and substitute other workers when those initially selected are unavailable."

According to the report, there are substantial disincentives for the reporting of injuries which can in some cases lead to pressure on health care practitioners to provide insufficient medical treatment.

The full report, Enhancing OSHA's Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data, was issued on October 15, 2009.

Will OSHA go along? According to the report, OSHA agreed with the recommendations.

Mine Safety Commissioner Moves Back to Chair

Reprising a role she held in the Clinton administration, current member of the Mine Safety & Health Review Commission Mary Lucille Jordan has been designated by President Obama as the Chair, see announcement here. Before being appointed to the Commission, Jordan worked for the United Mine Workers for more than 17 years as an attorney.

Although it gets less publicity than its cousin, OSHA, MSHA is the counterpart for the mining industry and obviously in recent years has been in the headlines with some well publicized mine tragedies. The Mine Safety & Health Review Commission is the judicial body which reviews determinations made by ALJ's.

Although it is not an area I have had much experience with my firm is fortunate to have a large collection of MSHA lawyers in our Washington office including Michael Heenan, who has been "toiling in the mines" (well not literally!) for more than 40 years. It is one of those sometimes hidden specialties, but critical if you are covered by MSHA.

Congratulations to Jordan Barab, Number 2 at OSHA

I first learned of Jordan Barab by reading his blog, Confined Space. His blog has been dormant since January 24, 2007 when he joined the Committee on Education and Labor working on OSHA related legislation. You can see my comments on the shut down of his blog at A Tremendous Loss - Confined Space Closes Shop.

Last week, Barab was named Deputy Assistant Secretary for OSHA, and until a permanent OSHA Director is named, he will also be filling that role. See House Aide Jordan Barab Named Acting Head of OSHA.

I actually got to meet Jordan the last week of February at a seminar where we were both speaking. I know workplace safety is something that he is passionate about. He has always been a strong and vigorous advocate, but now moves even more to the center of the action.

Others have been quick to sing his praise, see quotes from the AFL-CIO's director of safety and health, Peg Seminario and the Chair of the House Committee where he has been working, Rep. George Miller, here. And from the blogosphere, Effect Measure, titles it a Miracle at OSHA.

Best of luck in a challenging position.

Texas Parking Lot Gun Bill Moves a Step Closer

S.B. 730, has been reported out of Committee favorably and placed on the intent calendar for today, which means it can now be considered by the full Texas Senate.

The Committee vote? Guns 7 - Sanity 0.

Update (3/26/09): The bill has now passed the Senate 31 - 0 and been sent to the House. A veteran lobbyist predicts passage at 99%. Hard to be against guns in Texas.

A Bad Comination for 2009

With the Obama administration expected to place a much higher emphasis on OSHA enforcement, news that workplace fatalities for 2007 in Texas were the highest in 6 years, is not a good combination. Texas experiences spike in workplace fatalities.

The leading causes of Texas workplace death?

• highway crashes (132),
• falls to lower levels (72),
• homicides (70)
• being struck by an object (47).

Homicides is that one that surprises me.

Last week the Washington Post article, Under Bush, OSHA Mired in Inaction, was a less than flattering look at the agency. Expect the approach to be quite different under Secretary Solis and whoever ends up as head of OSHA.

Oklahoma Gun Law Case and the Law of Unintended Consequences

Another chapter in the on-going battle between state legislatures and employers over whether guns can be barred from company parking lots unfolds in the 10th Circuit Court of Appeals this morning when the fate of the Oklahoma statute is heard. The case being argued is Ramsey Winch Inc. v. C. Henry, case number 07-5166 For some background check out Who's Packing in the Car?

The district court issued a permanent injunction against the enforcement of the Oklahoma statute holding it was preempted by the General Duty Clause of the Occupational Safety and Health Act.

For those not acquainted with OSHA, the obligations of the employer are set forth in 29 U.S.C. §654(a):

a) Each employer

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

Section (1) is known as the general duty clause and (2) the specific duty clause. The latter leads to literally thousands of pages of regulations that specify detailed rules on everything from shoring of ditches to lockout prevention.

The district court held that it was the general duty clause that preempted the Oklahoma gun statute. Although credit has to be given to the creativity of employers' counsel for the argument, my first thought when I heard the grounds for the decision was how such a ruling could increase exposure to OSHA violations for other employers. For some general views on how the general duty clause works in the real world see Workplace Safety is a Shared Responsibility from Chemical Processing.com or Using the General Duty Clause from the National Council for Occupational Safety and Health.

Although I would hope the outcome of today's hearing is ultimately upholding the ban on Oklahoma's gun law, I also fear the highlighted use of the general duty clause may well lead down some paths that may not be as good for employers.

It might just emphasize one of the often overlooked aspects of the practice of law, that one of the most important laws of all is the law of unintended consequences.

Hat tip to Employment Law 360 for their story in today's edition, 10th Circ. To Hear Case On Guns At Work ($).

If It's Wednesday, Watch Your Eyes

I am finally catching up on some of the stories I wasn't reading while on vacation, and here's another one, very timely if you're reading this on Wednesday, even though it was posted two weeks ago. It's from the good folks at Lynch Ryan their blog, Workers' Comp Insider: Eye safety and eye health on the job.

The reference to Wednesday -- more eye injuries occur on the job on that day than any other.

There are not many things that I am more squeamish about than my eyes (I could never wear contacts; thank goodness for lasik). According to the story, 2,000 people a day suffer eye injuries. Ouch!!

Eight Years in the Making - Employer Pay for PPE

I really haven't digested the details of the new OSHA regulation on personal protective equipment, but here's a link to the final rule: Employer Payment for Personal Protective Equipment; Final Rule.

What I was struck by was the commentary I read elsewhere summarized in this opening paragraph about the history of this regulation (emphasis and bracketed material added by me):

In 1999 [March 31], OSHA issued a proposal to require employers to pay for all protective equipment, including personal protective equipment (PPE), with explicit exceptions for certain safety shoes, prescription safety eyewear, and logging boots (64 FR 15402). The proposal cited two primary reasons for requiring employers to pay for PPE. First, OSHA preliminarily concluded that the Occupational Safety and Health Act of 1970 (OSH Act, or the Act) implicitly requires employers to pay for PPE that is necessary to protect the safety and health of employees. Second, OSHA preliminarily concluded that an across-the-board employer-payment requirement would result in safety benefits by reducing the misuse or non-use of PPE (64 FR 15406-07). Following an initial notice and comment period, an informal rulemaking hearing, a second notice and comment period on specific issues [July 8, 2004], and careful Agency deliberation, OSHA finds that its preliminary conclusions are appropriate and is therefore issuing this final standard requiring employers to pay for PPE, with limited exceptions.

According to an article on the SHRM website, OSHA was managing to make both management and labor unhappy, and finally got a little nudge:

Business-related and organized labor groups have been highly critical of the delay in issuing the final rules. Many employer and work safety groups had complained that OSHA appeared to be dragging its feet and had ignored the pleas of employers to create guidelines that would make it clear who would be responsible for paying for workers’ safety equipment.

Organized labor also criticized the long delay, claiming that the Bush administration was maneuvering to shift costs away from employers and place them on the shoulders of workers. Several proposals to reform federal health and safety laws have faltered in Congress since 1999. Several of the proposed measures included PPE provisions.

In January 2007, the AFL-CIO and United Food and Commercial Workers filed a lawsuit in the federal appeals court for the District of Columbia to force OSHA to issue the final rules. The court has not issued a final ruling on the case. In March, Rep. George Miller, D-Calif., chair of the House Education and Labor Committee, introduced legislation to force OSHA to act on the final regulations.

I know regulations are complicated things, and I really have no knowledge about the background on this, and I am assuming that it is a fairly sizeable cost shift from employers to employees and perhaps the looming inevitablity of such a regulation allowed for that to be taken into account in ongoing pay decisions in the interim, but still -- are we now so partisan, or is our government so inefficient, that we need to take eight years to come up with a regulation?

There may well be answers for that question on this particular regulation, and I welcome any commenters who can shed light on it. But even if there are, there is a nagging sense underlying this post that this is not a good sign for how things should work.

New OSHA Electrical Standard on August 13

If you are in the shipyard employment, longshoring, and marine terminals you might want to know that OSHA has specifically mentioned your industry as being affected by its new rule for electrical installations. It will ultimately be found at 29 C.F.R. § 1910.302 through 1910.308, with definitions in § 1910.399. But if you just cant' wait to see what is in store, you can check it out in today's Federal Register at FR Doc E7-1360.

Although OSHA mentioned the three specific industries, the standard just like the ones it will be replacing applies to all OSHA regulated employers.

A Tremendous Loss - Confined Space Closes Shop

I have never met or even corresponded with Jordan Barab, but I have long been impressed by not only his insightful and informative posting, but more importantly his fervid belief in the cause of safety for workers. You need only read a single posting to get that message loud and clear.

Today is his last day of posting. You can see Moving On: Closing Up Shop for the details and an invitation to an on line farewell which starts in just about 2 hours. From the 62 comments that have already been left, there will be plenty of company there.

Although the blog will be gone, Jordan won’t be gone entirely. In his words:

Starting next week, I’ll be heading to the House of Representatives Committee on Education and Labor, working on OSHA-related legislation, oversight hearings, investigations, etc. In other words, instead of just writing about what Congress and this administration needs to be doing to protect workers, I’ll hopefully be able to directly affect some of those things.

Although many might think given the title of this blog that I would have different views from Jordan, and we certainly might differ on methods of how to get there, I don’t think there is anyone who works in the field of employment law and labor who doesn’t earnestly want the safest of workplaces for all employees. And certainly all who do can appreciate and admire the passion which Jordan Barab has — and I am sure will — bring to that task every day. I know I do. Not just a hat tip, but my hat’s off to Confined Space and Jordon Barab who will leave a definite hole in one corner of the blogosphere.

A Top 10 List You Don't Want to Miss

Or violate either for that matter. Check out Professor Paul Secunda's post on the Top 10 Violated OSHA Standards at the Workplace Prof Blog. Number 1 with almost 8,000 violations last year was § 1926.451 -- which you of course immediately recognized as the general requirements for scaffolding.