Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

Both the House and Senate have passed a massive fiscal year 2012 appropriations package (pdf) that would allocate $14.5 billion for the Department of Labor and $278 million for the National Labor Relations Board, but includes a number of restrictions on this funding. The appropriations package is comprised of three separate bills, one of which is a consolidated measure that provides funding for a number of federal agencies, including the DOL and NLRB, for FY 2012.

Under the terms of the appropriations package, the DOL would receive $145.4 million more in FY 2012 than it received in 2011, although the boost in funding was largely due to a provision that fully funds Job Corps in the current fiscal year. According to a detailed summary (pdf) of the bill, without this provision, the DOL is actually receiving $545.6 million less than it received last year, and $942.2 million below the President’s funding request. The NLRB would receive $4 million less than it received last year, and an amount $8.9 million below the President’s budget request.

The funds come with strings attached. Essentially, the measure would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas. Specifically, provisions in the bill would accomplish the following:

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The Department of Transportation has issued a final rule banning the use of hand-held cell phones by interstate truck and bus drivers while the vehicles are in operation in order to combat distracted driving. The rule emphasizes that the prohibition applies to hand-held devices only. Hands-free devices and mobile phones with a speaker phone option and one-touch dialing are permissible so long the device is within the driver’s reach while he or she is in the normal seated position with the seat belt fastened. The rule does, however, prohibit the push-to-talk function of a mobile telephone, as this would require the driver to hold the device while driving.

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The Occupational Safety and Health Administration (OSHA) has issued interim final regulations (pdf) governing its procedures for processing retaliation/whistleblower complaints under the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley” or “SOX”). The SOX whistleblower provisions were amended by Sections 922 and 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, enacted on July 21, 2010.

Notably, Section 922(a) of Dodd-Frank amended the Securities Exchange Act to establish a new securities whistleblower incentive and protection program. The SEC has already issued final regulations governing this program. Section 922(a) of Dodd-Frank added various protections for whistleblowers, including a prohibition on discharging, demoting, suspending, threatening, harassing (directly or indirectly) or otherwise discriminating against an employee for providing information to the SEC or assisting in an investigation or judicial or administrative action relating to the information provided. Section 922(c) of Dodd-Frank extended the statutory filing period for retaliation complaints under Sarbanes-Oxley from 90 to 180 days. If a final decision is not issued within that time period, and the delay is not due to the complainant’s bad faith, he or she is entitled to bring an action against his or her employer in federal court. The regulations have been changed to reflect the Dodd-Frank revisions affording parties the right to a jury trial. This section of Dodd-Frank also prohibits the waiver of such claims by pre-dispute arbitration agreements. Section 929A expressly states that the whistleblower protection provisions in Sarbanes-Oxley apply to employees of subsidiaries and affiliates of publicly-traded companies whose financial information is included in the consolidated financial statements of such companies.

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According to information released by the Bureau of Labor Statistics (BLS), the number of reported cases of private sector nonfatal occupational injuries and illnesses that occurred in 2010 declined once again from the prior year, continuing an 8-year trend. The BLS reports that in 2010, 3.5 injury and illness cases per 100 equivalent full-time workers were reported, down from 3.6 per 100 in 2009. The incident rate of injuries incurred only in the private sector remained unchanged between 2009 and 2010, with 3.4 reported cases per 100 full-time employees. Illness-only cases remained relatively unchanged as well. The only private industry sector that experienced an increase in its injury and illness incidence rate was manufacturing, which the BLS attributes to a larger decline in hours worked rather than the corresponding decline in reported injury and illness cases in that sector.

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The Occupational Safety and Health Administration has announced (pdf) that it intends to hold a public meeting to solicit input on preventing occupational hearing loss. Last October, OSHA issued a proposed reinterpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. The standards require employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are feasible. The proposed interpretation would have clarified that feasibility in this instance means “capable of being done” or “achievable.” Amid an outcry from many in the business community, the agency withdrew this proposed change in January 2011.

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The Occupational Safety and Health Administration (OSHA) has agreed to reopen the comment period to allow for further input on its proposed changes to certain recordkeeping and reporting requirements. In June, the agency proposed to revise the current rule, which requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees. The proposed rule would require an employer to report to OSHA, within eight hours, all work-related fatalities and all work related in-patient hospitalizations; and within 24 hours, all work-related amputations. The proposal would also amend Appendix A to Subpart B of the agency’s Injury and Illness Recording and Reporting regulation by updating the list of low-risk industries that are partially exempt from the rule’s requirements. Industries considered “low risk” are those with an average Days Away, Restricted, or Transferred (DART) rate at or below 75 percent of the national average DART rate. The proposed rule seeks to amend the list of low-risk industries listed in Appendix A by replacing the current list with one based on the updated North American Industry Classification System (NAICS) data, which relies on DART rates based on recent information compiled by the Bureau of Labor Statistics (BLS).

The initial comment period closed on September 20, 2011. In response to a request by the National Automobile Dealers Association, the agency will reopen this proposal for additional comment until October 20, 2011. All comments must include the docket number: OSHA-2010-0019 or the regulatory information number (RIN) 1218-AC50. Comments may be submitted electronically through the federal eRulemaking portal, or via fax if fewer than 10 pages to: (202) 693-1648. Alternatively, comments may be sent by mail or hand-delivery to: OSHA Docket Office, Docket Number OSHA-2010-0019, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.

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Continuing its efforts to strengthen the enforcement of the Occupational Safety and Health Administration’s Whistleblower Protection Program, OSHA has released an updated Whistleblower Investigations Manual (pdf) containing revised case handling procedures and information on new laws enacted since the last manual was issued. The agency is responsible for enforcing the whistleblower provisions contained in 21 separate statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act). In August, OSHA announced its plans to improve its efforts to investigate and enforce whistleblower complaints under these statutes in response to a Government Accountability Office (GAO) assessment of the agency’s Whistleblower Protection Program, which the GAO found lacking.

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High-hazard, non-construction employers with 20 or more employees will be subject to inspections under the Occupational Safety and Health’s 2011 Site-Specific Targeting (SST) programmed inspection plan. (pdf)  Last year’s SST applied to employers with at least 40 employees. The purpose of the SST is to enable OSHA to focus its inspection resources on workplaces that experience the highest injury and illness rates, as identified by data compiled in the 2010 OSHA Data Initiative (ODI) survey of approximately 80,000 establishments in selected high-hazard industries. According to OSHA, the worksites are randomly selected for inspection from a primary list of 3,700 manufacturing, non-manufacturing, and nursing and personal care facilities. Another change from last year’s program is the incorporation of a study to measure the program's impact on injury and illness rates and future compliance with OSHA standards.

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The Occupational Safety and Health Administration has issued a new a compliance directive: Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence. The purpose of the directive is to establish uniform procedures for OSHA field officers when responding to incidents and complaints of workplace violence. The directive also provides guidelines for conducting inspections in industries the agency deems particularly vulnerable to workplace violence, including healthcare, social service settings and late-night retail establishments. Specifically, the directive “highlights the steps that should be taken in reviewing incidents of workplace violence when considering whether to initiate an inspection in industries that OSHA has identified as susceptible to this hazard.” In conjunction with the directive, OSHA has launched a web page to assist employers in preventing incidents of workplace violence.

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Spurred by a Government Accountability Office (GAO) assessment of the Occupational Safety and Health Administration’s Whistleblower Protection Program, the agency has announced that it plans to strengthen its efforts to investigate and enforce whistleblower complaints. OSHA is charged with enforcing the whistleblower provisions contained in 21 separate statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act). According to OSHA, the GAO found “significant problems with OSHA's transparency and accountability, training for investigators and managers, and the internal communication and audit program.” To that end, OSHA commissioned an internal investigation of its Whistleblower Protection Program to examine the “national and regional program structure, operational procedures, investigative processes, budget, equipment, and personnel issues.”

As a result of this investigation, which, according to OSHA, confirmed the GAO’s assessment of the Program, OSHA plans to implement the following changes:

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Deputy Assistant Secretary for the Occupational Safety and Health Administration Jordan Barab was on hand Monday to answer questions online regarding the agency’s regulatory agenda. The Department of Labor recently released its semiannual regulatory agenda, which included a number of significant workplace safety and health initiatives. OSHA’s agenda is an ambitious one, with eight proposals in the preliminary stages, five at the proposed rule level, and 14 regulations at the final stage of development. The agency is in the initial process of developing standards to address such hazards as infectious diseases, combustible dust, bloodborne pathogens, occupational exposure to beryllium, and occupational exposure to food favoring containing diacetyl and diacetyl substitutes. OSHA is also proposing rules that would reinstate the musculoskeletal disorder (MSD) column to the injury and illness reporting log, revise the agency’s injury and illness reporting system, and protect against occupational exposure to crystalline silica, among other measures. Regulations at the final rule stage include those designed to address hazard communication, and procedures to handle whistleblowing and retaliation complaints under various statutes governed by OSHA.

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According to the Department of Labor’s semiannual regulatory agenda, (pdf) over the next 10 months the agency plans to develop and implement regulations affecting labor-management relations and occupational safety and health. The agenda – which is published twice a year – outlines all of the regulations the agency expects to actively review, develop or promulgate between April 2011 and April 2012. The Department announced that its agencies “have carefully assessed their available resources and what they can accomplish in the next 12 months and have adjusted their agendas accordingly.”

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The Occupational Safety and Health Administration will hold a series of stakeholder meetings on July 29, 2011 to gather information on how best to limit occupational exposure to infectious diseases. According to a notice (pdf) to be published in the Federal Register, the agency is considering the development of a program standard to limit exposure to infectious agents for workers who provide direct patient care or perform tasks other than direct patient care, but are nonetheless exposed to infectious diseases. As discussed in the notice, the latter category might include such tasks as providing patient support services such as housekeeping, food delivery, or facility maintenance; handling, transporting, receiving or processing infectious items or waste; maintaining, servicing or repairing medical equipment that is contaminated with infectious agents; conducting autopsies; performing mortuary services; and performing tasks in laboratories that could result in occupational exposure to diseases.

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The Occupational Safety and Health Administration is proposing to amend certain recordkeeping and reporting requirements by updating the list of low-risk industries that are partially exempt from these requirements, and mandating that employers report all instances of work-related fatalities and in-patient hospitalizations to the agency within eight hours, and amputations within 24 hours.

Appendix A to Subpart B of OSHA’s Injury and Illness Recording and Reporting regulation lists the industries that are partially exempt from maintaining records of occupational injuries and illnesses. Currently, these exempt industries are considered low-risk based on the Standard Industrial Classification (SIC) system. These lower hazard industries are those industries with an average Days Away, Restricted, or Transferred (DART) rate at or below 75 percent of the national average DART rate. As explained in the proposed rule, in 1997 the North American Industry Classification System (NAICS) was introduced to classify establishments by industry. OSHA began converting the SIC codes to NAICS codes in 2001. The proposed rule would update the list of low-risk industries in Appendix A by replacing the current list with one based on the updated NAICS data, which uses DART rates based on recent information compiled by the Bureau of Labor Statistics (BLS).

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A bill that would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, significantly enhancing employer civil and criminal penalties for violations, and providing rights to victims and their family members during the investigation process was reintroduced in the Senate on June 9, 2011. When reintroducing the Protecting America’s Workers Act (PAWA) (S. 1166) on the Senate floor, Sen. Patty Murray (D-WA) said that among other changes to the OSH Act, her bill would “make sure that a whistleblower’s right to protection from retaliation can’t be waived through collective bargaining agreements,” and that employees would “have the option to appeal to the federal courts if they feel they are being mistreated for telling the truth about dangerous practices.” Murray also stated that PAWA would improve reporting, inspection, and enforcement of workplace health and safety violations, and require employers to begin the abatement process for serious, willful, or repeated violations upon receipt of the citation, even if they contest the issuance of the citations in the first instance.

PAWA has been introduced a number of times in various forms within the past few years. On January 5 of this year, PAWA was reintroduced in the House of Representatives by Rep. Lynn Woolsey (D-CA) as H.R. 190. Later that month, Senators Jay Rockefeller (D-WV), Tom Harkin (D-IA), Patty Murray (D-WA) and Joe Manchin III (D-WV) reintroduced the more expansive the Robert C. Byrd Mine and Workplace Safety and Health Act (S. 153). A companion bill (H.R. 1579) was introduced in the House in April. None of these measures have advanced, nor are they expected to this year. Therefore, while the PAWA, if enacted, would make significant changes to the OSH Act, its likelihood of passage this session is remote.

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The Occupational Safety and Health Administration has developed on online tool to help employers assess their obligations under the agency’s injury and illness recordkeeping regulations. The OSHA Recordkeeping Advisor is presented in question and answer format and directs users to the next appropriate inquiry and/or course of action based on their responses. The stated purpose of the online tool is to help employers determine:

• Whether an injury or illness (or related event) is work-related
• Whether an event or exposure at home or on travel is work-related
• Whether an exception applies to the injury or illness
• Whether a work-related injury or illness needs to be recorded
• Which provisions of the regulations apply when recording a work-related case

The agency emphasizes that the tool is designed to help employers better understand their recordkeeping requirements, but should not be used as a substitute for OSHA’s more detailed regulations, handbooks, or letters of interpretation.

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The Department of Labor’s Office of Inspector General (OIG) has issued its Semiannual Report to Congress, (pdf) outlining its significant accomplishments made during the six-month period ending March 31, 2011, and making a number of legislative recommendations. The OIG conducts audits and evaluations to review the effectiveness, efficiency, economy, and integrity of all DOL programs and operations, including those performed by its contractors and grantees. The office is also responsible for conducting criminal investigations regarding labor union racketeering and organized crime. According to the report, the OIG’s investigative work resulted in 207 indictments, 133 convictions, and $155 million in investigative recoveries, cost-efficiencies, restitutions, fines and penalties, forfeitures, and civil monetary action.

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By George O'Brien

In conjunction with National Nurses Week, Sen. Barbara Boxer (D-CA) reintroduced legislation on May 12 that would establish minimum nurse-to-patient ratios, require hospitals to implement nurse-to-patient staffing plans, and provide whistleblower protection for patients and hospital employees. The National Nursing Shortage Reform and Patient Advocacy Act (S. 992) is the latest in a number of bills introduced in recent years that are designed to provide nurses – and their unions – with greater influence on nurse staffing levels.  Continue reading this entry at Littler's Healthcare Employment Counsel.

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The Occupational Safety and Health Administration has announced (pdf) that it will reopen the public record and solicit limited comments on the proposed rule that would restore a column to the Form 300 Injury and Illness Log that employers would have to check if an incident they already have recorded under existing rules involves a musculoskeletal disorder (MSD) injury. The proposed rule, which was issued in January 2010, would also require employers to record these MSD totals on the OSHA Form 300A Annual Summary.

After temporarily withdrawing this controversial proposal in January of this year, the agency announced its plans to conduct a series of telephone conferences to allow small businesses to provide information about their experiences in recording work-related MSDs and how they believe the proposed rule would impact them. A summary of the comments made at the teleconferences, held on April 11 & 12, can be found here.

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By Jaime L. Wasserstrom

On Thursday May 12, the Federal Aviation Administration (FAA) released a 671-page supplemental Notice of Proposed Rulemaking (“SNPRM”), (pdf) which proposes enhanced qualification, training, and evaluation requirements for all air carrier crewmembers and dispatchers, in response to congressional and public concerns raised following the 2009 crash of regional carrier Colgan Air in Buffalo, NY. The SNPRM – which was mandated by Congress in the Airline Safety and Federal Aviation Administration Extension Act of 2010 – revises training rule proposals first issued in January 2009 and opens a 60-day public comment period, which closes on July 19, 2011.

The FAA has highlighted that “[t]his proposal will make U.S. pilots and other crewmembers even better-equipped to handle any emergency they may encounter.” In fact, these changes would provide the most significant changes to air carrier training in approximately 20 years. Most significantly, the proposal would require “real world” training, requiring all members of a flight crew to demonstrate, not just learn, critical skills. These critical skills include responding to flying scenarios based on actual events, and, for pilots, participating in ground and flight training to learn how to recognize and recover from stalls and aircraft upsets. Like the original proposal, the supplemental notice would require the use of pilot flight simulation training devices.

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The Occupational Safety and Health Administration (OSHA) has announced that on May 13, 2011, it will hold an expert forum to identify the agency’s regulatory options for protecting workers from combustible dust hazards. According to a press release, matters to be discussed include “identifying regulatory options that can minimize the costs to small- and medium-sized businesses of reducing or preventing combustible dust hazards, while protecting workers from these hazards.” Members of the forum will include representatives from various industries, academia, research groups, insurance-underwriter organizations, labor, and the government.

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A bill aimed at promoting mine safety was reintroduced in the House of Representatives on April 15. The Robert C. Byrd Mine Safety Protection Act of 2011 (H.R. 1579) (pdf) would, among other things, increase Mine Safety and Health Administration (MSHA) oversight and accountability, impose new mine safety requirements, institute new whistleblower protections for miners, and increase civil and criminal penalties for mine operators charged with committing serious and repeat safety violations. A similar but more expansive bill (S. 153) was introduced in the Senate earlier this year. In addition to addressing mine safety, the Senate version would also significantly revise the Occupational Safety and Health (OSH) Act by strengthening whistleblower protections for employees in all industries, increasing employer civil and criminal penalties for repeat and/or willful violations of the OSH Act, providing greater rights for victims of accidents and their family members to participate in OSH Act proceedings, and requiring employers to begin the violation abatement process while the citation is pending.

Both versions of the Robert C. Byrd Mine Safety Protection Act failed to advance in 2010. After the measure was initially introduced as the more comprehensive safety and health bill, Rep. George Miller (D-CA) stripped the legislation of its OSH Act provisions, and reintroduced it following the November 2010 elections. Despite this effort to make the bill more palatable to those opposed to it, the House blocked its passage in December 2010. The reintroduced version is therefore unlikely to clear the House this time around. More information on this bill can be found here.

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A popular workplace safety initiative was shown support on Wednesday when lawmakers in both the House and Senate introduced bipartisan legislation to make it permanent. The Voluntary Protection Program (VPP) Act (H.R. 1511, S. 807) would codify the current program, authorize the grant of funds to enable it to continue, and extend its availability to small businesses.

To participate in the VPP, employers submit applications to the Occupational Safety and Health Administration (OSHA) and undergo a stringent safety assessment of their work site and safety and health management programs. If the facility meets the required safety and health standards and is approved to participate in this cooperative program, the employer is exempt from OSHA programmed inspections, investigations and certain paperwork requirements. This exemption does not apply to investigations or inspections resulting from employee complaints, fatalities, catastrophes, or significant toxic spills/releases. OSHA onsite evaluations would be conducted to ensure a high level of protection of employees, however, these onsite visits would not result in enforcement citations. Employers would also be subject to periodic reevaluations for continued participation in the program.

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Update: As expected, on April 14 the House and Senate passed the budget bill, sending the measure to the President for his signature. The Senate rejected a proposed resolution that would have de-funded the Affordable Care Act.

The eleventh-hour budget deal reached on April 8, 2011 would impact a number of healthcare and employment-related programs. Overall, the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (H.R. 1473), (pdf) commonly referred to as the continuing resolution (CR) to fund the federal government though September 30, 2011, cuts approximately $13 billion in appropriations from the President’s funding request for the U.S. Departments of Labor, Education, and Health and Human Services. Some initiatives are extended under the measure, while others are reduced or eliminated entirely. A full list of the program cuts can be found here. (pdf)

Health Care

Among other casualties (pdf) of the budget deal are two programs created by the Affordable Care Act – the Consumer Operated and Oriented Plan (CO-OP) and the Free Choice Voucher programs. The CO-OP program was designed to foster the creation of qualified nonprofit health insurance issuers that would have offered qualified health plans in the individual and small group markets. These plans were intended to compete with the private insurance market.

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In order to gather information from small businesses on the possible effects of the agency’s proposal to restore a column to the OSHA Form 300 Injury and Illness Log that would require employers to record work-related musculoskeletal disorders (MSD), the Occupational Safety and Health Administration has announced that it will hold a series of teleconferences to discuss the issue. The proposal, which OSHA temporarily withdrew in January, would revise Form 300 to include a column for employers to check if a case they already are required to record involves a MSD. In addition, the proposal would require employers to record these MSD totals on the OSHA Form 300A Annual Summary. The stated purpose of the three teleconferences is to allow small businesses to provide information about their experiences in recording work-related MSDs and how they believe the proposed rule would impact them.

The teleconferences will be held on Monday, April 11, 2011 at 1:30 p.m. EST, and on Tuesday, April 12, 2011 at 9 a.m. and 1:30 p.m. EST. Each teleconference is expected to last about 2 to 3 hours. Those interested in participating must contact Regina Powers at powers.regina@dol.gov by April 4, and indicate the teleconference in which they wish to participate. The Small Business Administration’s Office of Advocacy and OSHA will chose the participants from the pool of applicants, although members of the public may listen in on the meetings in person at OSHA's Washington, D.C. office at 200 Constitution Ave., NW, Washington D.C. 20210, Room N-3437 C & D.

The selected participants will be given background information and a list of issues for discussion in advance of the teleconference. More information on the teleconferences can be found here.

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Rep. Lois Capps (D-CA) and Rep. Steven LaTourette (R-OH) have reintroduced a bill in the House of Representatives that would require Medicare-participating hospitals to establish staffing plans for nursing services, provide certain whistleblower protections for employees and patients, and subject employers in violation of the bill to monetary penalties. Companion legislation to the bipartisan Registered Nurse Safe Staffing Act of 2011 (H.R. 876) was introduced in the Senate earlier this year.  Continue reading this entry at Littler’s Healthcare Employment Counsel.

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Early Saturday morning, the House of Representatives approved by a 235-189 margin the Full-Year Continuing Appropriations Act (H.R. 1) – otherwise known as the Continuing Resolution (CR) – that would fund the federal government through September 30, 2011. For days the House debated more than 150 of the nearly 600 proposed amendments to the legislation, including several that would deny funds to various agencies to implement the new health care reform law.  Continue reading this entry at Littler's Healthcare Employment Counsel. 

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On Wednesday, the full House Committee on Education and the Workforce held a hearing to discuss the policies and priorities of the Department of Labor. Earlier in the week, the agency released its 2012 budget request, which seeks $12.8 billion in discretionary budget authority and 17,848 full-time equivalent employees (FTE). Although the proposal would reduce the Department’s overall discretionary spending by 5% from current levels, the budget would increase funding for the agencies charged with regulating and enforcing worker protections. Several divisions within the DOL – the Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Employee Benefits Security Administration (EBSA), and the Office of Federal Contract Compliance Programs (OFCCP) – would each receive additional funding under a budget that allocates a total of $1.8 billion for DOL’s worker protection agencies. Given President Obama’s plan to freeze all non-security discretionary spending and DOL’s overall discretionary budget reduction, the increase in resources for worker protection demonstrates the Administration’s continued commitment to enhancing the regulation and enforcement of labor and employment laws. For a complete analysis of the DOL’s budget request, see Littler’s ASAP: U.S. Department of Labor's 2012 Budget Shows Increasing Resources Toward Regulation and Enforcement of Employment Laws.

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The Occupational Safety and Health Administration has issued a directive – Enforcement Guidance for Personal Protective Equipment in General Industry (pdf) – that provides enforcement personnel with instructions for determining whether employers have complied with the agency’s personal protective equipment (PPE) standards. This directive, effective as of February 10, 2011, takes into consideration recently revised PPE rules, and therefore supersedes the PPE Inspection Guidelines issued in June 1995. On November 15, 2007, the agency revised its standards on PPE regarding employer payment for required PPE. Generally, the rule requires employers to pay for the PPE used to comply with OSHA standards, with specific exceptions. On September 9, 2009, OSHA revised its standards regarding eye, face, head and foot protection. As discussed in the document’s executive summary, the new directive differs significantly from the former version in that it:

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On Tuesday, the House Subcommittee on Workforce Protections held a hearing –
Investigating OSHA's Regulatory Agenda and Its Impact on Job Creation – to examine recent regulatory actions taken by the agency and discuss ways to improve the rulemaking process. Subcommittee Chairman Tim Walberg (R-MI) stated that both employers and employees have a “shared goal” of creating a safe workplace, but argued that OSHA has “become an administration focused more on punishment than prevention.” 

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Although the pace has slowed somewhat, lawmakers continue to introduce new labor and employment legislation. The following bills have been introduced during the second month of the 112th Congress:

Wage and Hour

Rep. Donna Edwards (D-MD) reintroduced legislation that would amend the Fair Labor Standards Act (FLSA) to establish a base minimum wage for tipped employees. The Working for Adequate Gains for Employment in Services (WAGES) Act (H.R. 631) would mandate that tipped employees be paid at least $3.75 per hour. This amount would increase to $5 per hour a year after enactment. The following year, this base amount would increase to 70 percent of the minimum wage as established under section 6(a)(1) of the FLSA, or $5.50 per hour, whichever amount is greater. Although this bill would have a significant impact on the service industry if enacted, its chance of passage this term is slim.

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Less than one month into the new session, the 112th Congress continues to introduce labor and employment-related bills at a rapid pace. While a substantial portion of new legislation targets health care, a number of bills have focused on employment-related reforms. The following measures were offered during the past week alone:

Immigration

On January 24, Rep. Jeff Flake (R-AZ) re-introduced the Stopping Trained in America Ph.D.s From Leaving the Economy (STAPLE) Act of 2011 (H.R. 399), a bill that would exempt foreign students who have earned a Ph.D. degree in science, technology, engineering, or mathematics from a U.S. university and have a job offer in the U.S. from visa quotas. In a statement, Flake said: “At a time when there’s a lot of focus on keeping the U.S. competitive globally, if we don’t keep these highly-skilled workers in the U.S. after they’ve graduated, we’re going to see the next round of high tech companies created overseas rather than here in the United States.”

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The Occupational Safety and Health Administration (OSHA) has announced that it is temporarily withdrawing its proposal to restore a column to the OSHA Injury and Illness (Form 300) Log that employers would use to record work-related musculoskeletal disorders (MSD). The agency issued a proposed rule to amend its recordkeeping requirements to include the MSD column last January. According to the announcement, OSHA is doing so in order to “seek greater input from small businesses on the impact of the proposal . . ."  While expressing concern that MSD “remain the leading cause of workplace injury and illness in this country,” OSHA’s Assistant Secretary of Labor David Michaels acknowledged that the proposal “has raised concern among small businesses, so OSHA is facilitating an active dialogue between the agency and the small business community." To that end, Michaels said OSHA and the U.S. Small Business Administration's Office of Advocacy will hold a public meeting to solicit further comment on the proposal.

This notice comes on the heels of yet another OSHA proposed rule withdrawal. Last week, the agency announced that it was rescinding its proposed interpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards because of concern voiced by the business community. Both withdrawals follow President Obama’s recent executive order and memoranda to federal agencies directing rulemakers to consider how regulations impact small businesses and economic development.

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The Occupational Safety and Health Administration (OSHA) has announced that it is withdrawing its proposed interpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. The agency proposed this change in October 2010. The standards require employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are feasible. The proposed interpretation would have clarified that feasibility in this instance means “capable of being done” or “achievable.”

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The Occupational Safety and Health Administration (OSHA) will issue a final rule (pdf) that outlines the procedures for handling retaliation complaints under the whistleblower provisions of six environmental statutes and Section 211 of the Energy Reorganization Act (ERA) of 1974, as amended. OSHA is responsible for enforcing the whistleblower provisions of 20 separate statutes. The stated purpose of the final rule is to make the employee protection provisions “as consistent as possible with the more recently promulgated procedures for handling retaliation complaints under other whistleblower provisions administered by [OSHA].”

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Despite the initial focus on health care repeal, several lawmakers have introduced labor and employment-related legislation during the first two weeks of the new 112th Congress. Some aim to tweak existing laws, while others call for more massive overhauls. Rep. Michele Bachmann (R-MN), for instance, introduced a bill (H.R. 87) the first day of the new legislative term to repeal the Dodd-Frank Wall Street Reform and Consumer Protection Act which was signed into law on July 21, 2010. This bill contains several employment related provisions dealing with executive compensation, arbitration, and whistleblower protections. Although the chances of repealing the Dodd-Frank Act are slim, greater scrutiny of and challenges to its implementation are expected.

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During OSHA’s live web chat, which was held on Wednesday, Assistant Secretary of Labor David Michaels reiterated that the agency intends to publish five new final rules in 2011. The new standards include those addressing: Hazard Communication and Standards Improvement; Confined Spaces in Construction; General Working Conditions for Shipyards; and Electric Power Transmission. Michaels also said the agency intends to publish final rules for several whistleblower regulations. In addition, OSHA plans to publish a proposed rule for crystalline silica this Spring.

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On Tuesday, the House of Representatives approved by a 215 – 144 margin the FDA Food Safety Modernization Act (H.R. 2751), legislation that, among other things, provides whistleblower protections to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Although the Senate had passed this measure in November, the bill was later invalidated for technical reasons. Meanwhile, on December 9 the House approved a continuing appropriations bill that contained the food safety provisions. In a surprise vote last Sunday, the Senate re-approved the standalone bill by unanimous consent.

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In the next year, the Department of Labor (DOL) intends to issue 35 proposed rules and 25 final rules, consider drafting 13 new rules, and initiate 8 long-term actions. As outlined in the agency’s Semiannual Regulatory Agenda, nearly half of such regulatory activities will be undertaken by the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA). The sheer volume of possible regulatory activity is in keeping with the DOL’s renewed focus on rulemaking and enforcement. A complete list of the agency’s Fall 2010 Rule List can be found here. Highlights of the DOL’s intended regulatory activity include the following:

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On Monday the Department of Labor (DOL) will publish its Semiannual Regulatory Plan (pdf) in the Federal Register. The Regulatory Plan is a subset of the DOL’s regulatory agenda and contains a statement of the DOL’s regulatory priorities and actions it considers to be the most important and significant. The full DOL regulatory agenda will be made available on Monday and will be posted on www.reginfo.gov. The regulatory agenda lists the regulations the DOL expects to have under active development at any stage for the upcoming one-year period, as well as those actions completed within the past six months. The DOL’s regulatory agenda indicates that the Occupational Safety and Health Administration (OSHA) will be very active. Specifically, OSHA is taking steps to develop rules governing occupational exposure to beryllium and food flavorings containing diacetyl and diacetyl substitutes. OSHA will also undertake a routine review of its Bloodborne Pathogen Standard to assess whether there is still a need for such a standard. At the proposed rule stage, OSHA has developed possible regulations governing occupational exposure to crystalline silica.

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On Wednesday the House of Representatives approved a continuing appropriations bill that incorporates the FDA Food Safety Modernization Act (S. 510), including its food industry worker whistleblower protection provisions. The Senate had approved the food safety measure on November 30. The House cleared the broader 2011 Full-Year Continuing Appropriations Act (H.R. 3082) by a narrow 212-206 margin. The larger funding bill will now need Senate approval.

The whistleblower provisions at issue apply to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Under these provisions, an employer in the food industry would be precluded from firing or otherwise discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee informed the employer or a government official of a perceived violation of the food safety act; testified or otherwise assisted in a proceeding regarding the violation; or objected to or refused to participate in an activity or practice that he or she believed to be in violation of the Act. The aggrieved employee would have the right to file a complaint with the Department of Labor and, if the complaint were to remain unresolved within a proscribed time period, an action in federal court.

Photo credit:  MBPHOTO, INC.

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On Wednesday, the House of Representatives blocked passage of the Robert C. Byrd Mine Safety Protection Act of 2010 (H.R. 6495), a streamlined version of a more comprehensive occupational safety measure introduced earlier this year. Although the vote in favor of the bill was 214 to 193, a two-thirds majority approval was needed to suspend the rules and pass the bill. Given yesterday’s vote and the approach of a new Congress, any further action on this bill seems unlikely.

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A recently-released report conducted by the Bureau of Labor Statistics (BLS) finds that the number of cases of nonfatal workplace injuries and illnesses that resulted in days away from work in the private sector declined by 11 % to 964,990 in 2009, representing the first time this category has fallen below 1 million since the BLS began collecting such data. The total private sector nonfatal workplace injury and illness incidence rate decreased by 6 % (106 cases per 10,000 full-time workers). According to the BLS, time away from work is considered a key measure of the severity of the occupational injuries and illnesses incurred.

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The Occupational Safety and Health Administration (OSHA) will continue to target high-hazard workplaces for inspections under its 2010 Site-Specific Targeting (SST) program. (pdf)  As discussed in a news release, the SST program “is OSHA's main programmed inspection plan for non-construction workplaces that have 40 or more workers.” The plan is based on information gathered from OSHA’s 2009 Data Initiative (ODI) survey, which collected injury and illness data from approximately 80,000 private sector establishments in high-hazard industries during 2008. OSHA uses this information to calculate establishment-specific injury/illness rates, and in combination with other data sources, to target enforcement and compliance assistance activities. According to the agency, this year OSHA is also collecting work-related injury and illness data from approximately 20,000 establishments in the construction industry, in addition to non-construction establishments. The 2010 SST, however, does not include data on construction worksites. The ODI’s information is similar to that gathered by the Bureau of Labor Statistics (BLS). The BLS, however, collects data from only a sample of all private-sector establishment in generating its annual injury and illness report.

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Nonfatal instances of private sector workplace injuries and illnesses declined “significantly” in 2009, according to a report issued by the Bureau of Labor Statistics (BLS). The Workplace Injury and Illness Summary indicates that nonfatal workplace injuries and illnesses among private industry employers declined by a rate of 3.6 cases per 100 equivalent full-time workers, down from the prior year’s rate of 3.9 per 100. The incidence rate of injuries alone in the private sector fell by 11% in 2009. While such injury and illness rates dropped for all private sector establishments, the manufacturing sector showed the largest decline of 23% (161,100 cases) from 2008 to 2009. According to the BLS, this sector represents approximately 39% of the total private industry decline of such reports for 2009. Dropping by an injury and illness reporting rate of 22%, the construction industry comes in second. The highest incidents of injury and illness reports in 2009 arose from mid-size (between 50 and 249 workers) private industry employers; predictably, small establishment (those with fewer than 11 workers) reported the fewest incidents.

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The Occupational Safety and Health Administration (OSHA) is proposing an official interpretation (pdf) of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. As explained in a summary to be published in tomorrow’s edition of the Federal Register, the above OSHA standards require employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are feasible. Although feasibility encompasses both economic and technological considerations, OSHA explains that the instant interpretation addresses economic feasibility only. The agency seeks to clarify that “feasible” in this instance means “capable of being done” or “achievable.” OSHA states that it intends to revise its enforcement policy to reflect this clarification.

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The Federal Aviation Administration (FAA) has released its much-anticipated proposed regulations (pdf) governing rest rules for commercial airline pilots. Spurred by the February 2009 fatigue-related crash of Colgan Air 3407 in Buffalo, New York, these rules impose a number of new requirements on airlines to address flight operation and rest time. The rules are also in response to the recently-enacted Airline Safety and Federal Aviation Administration Extension Act of 2010, which directed the FAA to establish regulations to address pilot fatigue by August 1, 2011. In a statement, FAA Administrator Randy Babbitt said: “I know firsthand that fighting fatigue is a serious issue, and it is the joint responsibility of both the airline and the pilot,” adding, “After years of debate, the aviation community is moving forward to give pilots the tools they need to manage fatigue and fly safely.”

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OSHA's National Advisory Committee on Occupational Safety and Health (NACOSH) will conduct a two-day meeting next week to discuss, among other initiatives, the agency’s Injury and Illness Prevention Programs. Throughout the summer, the agency conducted a series of stakeholder meetings devoted exclusively to soliciting input to help OSHA formulate an Injury and Illness Prevention Program rule. These meetings were held on June 3, 10, 29; July 20; and August 3.  Next week’s meetings will be held from 8:30 a.m. to 4:30 p.m. EDT on September 14 and 15 at the U.S. Department of Labor, Room N-3437, 200 Constitution Ave., N.W., Washington, D.C. 20210. In addition to discussing OSHA’s injury and illness prevention programs, the meeting will focus on the recent Gulf of Mexico oil spill response efforts.

Individuals interested in speaking at the meetings must submit a request beforehand. Information on how to make such a request can be found here.  Interested parties may also submit comments to the NACOSH prior to the meeting. Comments may be delivered electronically through the federal eRulemaking portal: www.regulations.gov, or sent in triplicate to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Ave., N.W., Washington, D.C. 20210. Submissions of 10 pages or less may be faxed to the OSHA Docket Office at 202-693-1648. Submissions should include Docket No. OSHA-2010-0012.

Photo credit:  MBPHOTO, INC.

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The Occupational Safety and Health Administration (OSHA) will issue three interim final rules that outline the procedures for handling retaliation complaints under the whistleblower provisions of the Surface Transportation Assistance Act (STAA), National Transit Systems Security Act (NTSSA), Federal Railroad Safety Act (FRSA), and the Consumer Product Safety Improvement Act (CPSIA). OSHA enforces the anti-retaliation provisions of 19 separate statutes, including the four mentioned above. The new rules governing the NTSSA and the FRSA, (pdf) the STAA, (pdf) and the CPSIA (pdf) seek to establish and/or clarify and improve the procedures and time frames for handling retaliation complaints under these laws. In general, the complaint procedures outlined in each set of rules are consistent with one another. The similarities among the rules include the following:

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A preliminary report released August 19 by the Bureau of Labor Statistics' (BLS) National Census of Fatal Occupational Injuries(CGOI) indicates that the number of workplace fatalities declined in 2009 from the prior year. Specifically, the report shows that in 2009, 4,340 individuals died due to workplace injuries, down from the 5,214 such fatalities in 2008, representing a 16.7% decrease. Overall, the preliminary fatality rate for 2009 amounts to 3.3 per 100,000 full-time equivalent (FTE) workers. According to the BLS, this number represents the smallest annual preliminary total since the CFOI program’s inception in 1992. This decline was due, in part, to reduced employment in industries that traditionally experience a greater incidence of fatal injuries, such as construction.

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Last week the Senate introduced the Robert C. Byrd Mine and Workplace Safety and Health Act of 2010 (S. 3671), a bill that – like its House companion bill (H.R. 5663) – would improve mine safety as well as significantly revise the Occupational Safety and Health (OSH) Act. Among other things, the bill would increase Mine Safety and Health Administration (MSHA) oversight and accountability, impose new mine safety requirements, strengthen whistleblower protections for employees in all industries, increase employer civil and criminal penalties for repeat and/or willful violations of the OSH Act, require the abatement of hazards during the citation contest period, and provide greater rights for victims of accidents and their family members to participate in OSH Act proceedings. A summary of this legislation can be found here.

The House version was recently approved by the House Committee on Education and Labor. On July 13, the House committee held a hearing to hear testimony and discuss the various provisions of the measure.

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Before recessing for six weeks, the House of Representatives passed by a 315- 93 margin the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010 (H.R. 5851), a bill that would provide whistleblower protections for employees in the offshore oil and gas industries. The Offshore Oil and Gas Worker Whistleblower Protection Act was incorporated into broader oil spill response legislation, the Consolidated Land, Energy, and Aquatic Resources Act of 2010 (H.R. 3534), which the House passed by a vote of 209-193.

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The Occupational Safety and Health Administration (OSHA) has issued new regulations (pdf) addressing the safety of cranes and derricks in the construction industry. The rule updates and specifies industry work practices regarding the use of cranes and derricks, and also “addresses advances in the designs of cranes and derricks, related hazards, and the qualifications of employees needed to operate them safely.” According to an OSHA press release, approximately 267,000 construction, crane rental and crane certification establishments employing about 4.8 million workers will be affected by the rule.

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The House of Representatives approved by an overwhelming 413-4 margin legislation that would make it easier for employers to conduct background checks on employees who supervise, educate, or otherwise provide care for children. The Child Protection Improvements Act (H.R. 1469) would, among other things, make permanent the Child Safety Pilot Program created in 2004 by the PROTECT Act. This program established a nationally accessible fingerprint-based criminal history background check system for volunteers and employees of youth-serving organizations.

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On Wednesday, the House Committee on Education and Labor voted 30-17 to approve the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663), (pdf) legislation that – in addition to addressing mine safety – would significantly increase employer civil and criminal penalties for violations of the Occupational Safety and Health (OSH) Act, strengthen whistleblower protections and provide greater rights for victims of accidents and their family members to participate in proceedings under the OSH Act. The bill also would require employers, upon receipt of a citation, to abate the alleged violation and establish a process for a Motion to Stay abatement wherein the employer would have to meet the preliminary injunction standard of proving "substantial likelihood of success" in defeating the citation.

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The Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173) contains some surprising provisions. Safety and health professionals should note that MSHA reporting obligations for any covered entity that is a mine operator, or has a subsidiary that is a mine operator, of a “coal or other mine", are included.

In each periodic report that is filed with the Securities and Exchange Commission (SEC), the company will be required to report the following mine safety data in all periodic reports:

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On Tuesday, the House Education and Labor Committee held a hearing on the Miner Safety and Health Act of 2010 (H.R. 5663), the worker safety bill that, in addition to addressing mine safety, would significantly increase employer civil and criminal penalties for violations of the Occupational Safety and Health (OSH) Act, strengthen whistleblower protections and provide greater rights for victims of accidents and their family members to participate in proceedings under the OSH Act. These provisions were initially included in the Protecting America’s Workers Act (PAWA) (H.R. 2067, S. 1580), but were incorporated into the broader mine safety bill last month.

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The Occupational Safety and Health Administration (OSHA) has issued a proposed rule that will revise and delete a number of its standards. This proposed rule is being implemented as “Phase III” of the agency’s Standards Improvement Project, which is designed to “remove or revise outdated, duplicative, unnecessary, and inconsistent requirements in its safety and health standards.”

According to OSHA’s summary of the proposed changes, the agency is considering a number of actions amending its standards, including revisions to its general industry, maritime, construction, and agricultural standards. Some changes will impact more than one industry. For example, OSHA explains that the proposed revisions to the General Industry “Slings” standard also would affect shipyard employment and the construction industry.

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Members of the House and Senate appear to be using proposed legislation drafted in response to recent mine and oil spill disasters as a vehicle to push broader Occupational Safety and Health Administration (OSHA) reform provisions contained in the Protecting America’s Workers Act (PAWA) (H.R. 2067, S. 1580). House and Senate Democrats proposed major safety reforms for mines and other workplaces in the Miner Safety and Health Act of 2010. As emphasized by Senator Patty Murray (D-WA), Chair of the Senate Subcommittee on Employment and Workplace Safety, “[b]etween recent mine disasters and similar tragedies in other industries, it has become clear that Congress needs to act to strengthen protections provided by both MSHA and OSHA.” To that end, the discussion draft (pdf) of the legislation provides the Mine Safety and Health Administration (MSHA) with additional inspection and investigation authority. Mines with a pattern of significant safety problems would be placed on a “pattern of violation” status if their safety and compliance record falls below thresholds established by MSHA. Following the placement of a mine in pattern status, miners will be withdrawn from the mine and MSHA will issue a remedial order which the mine must satisfy. Among other proposals, the legislation would also increase maximum civil and criminal penalties for certain violations of mine safety law.

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On Friday, the Occupational Safety and Health Administration (OSHA) launched its Severe Violators Enforcement Program (SVEP), an initiative that “focuses enforcement efforts on employers who willfully and repeatedly endanger workers by exposing them to serious hazards.” The agency issued a directive in April that outlined the SVEP’s procedures and enforcement actions against employers that are found to have committed willful, repeat, and failure-to-abate violations of the OSH Act in one or more of the following circumstances: (1) a fatality or catastrophe situation; (2) in industry operations or processes that expose employees to the most severe occupational hazards and those identified as “high-emphasis hazards,” as defined in the SVEP; (3) exposing employees to hazards related to the potential release of a highly hazardous chemical; or (4) all egregious enforcement actions.

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The federal government and nurses unions have recently increased their focus on nurse-to-patient ratios and providing nurses – and nurses’ unions – with greater influence on nurse staffing levels. Earlier this month a federal agency used its website to advocate increasing hospital nurse-to-patient ratios. Nurses unions also have been rallying, striking, and marching on Washington to push for nurse-staffing legislation and provisions in collective bargaining agreements. Concurrent with these efforts, legislation was introduced in both the House and Senate this week that would require Medicare-participating hospitals to establish staffing plans for nursing services, provide certain whistleblower protections for employees and patients, and subject employers in violation of the bill to monetary penalties.  Continue reading this entry at Littler's Healthcare Employment Counsel blog.

Photo credit:  SmithMaxfield
 

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The Department of Labor (DOL) has announced plans to conduct web chats this month on issues involving workplace safety and benefit plan responsibilities. The Occupational Safety and Health Administration (OSHA) will host a web chat on workplace hazards associated with combustible dust on June 28, 2010. According to a notice (pdf) to be published in Monday’s edition of the Federal Register, the information gathered in response to the web chat will be used in the development of a proposed standard for combustible dust. The chat will focus on major issues related to a proposed rule such as scope, balance between performance and specification-based requirements, economic impacts, and definitions.

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The Occupational Safety and Health Administration (OSHA) is set to issue a proposed rule (pdf) to revise the agency’s walking-working surfaces and personal protective equipment standards. According to a summary of the proposed rule to be published in Monday’s edition of the Federal Register, the proposed rule is intended to reduce the number of fall-related employee deaths and injuries by updating the rule to include new technology (including personal fall protection systems) and industry methods. The proposed rule: “reorganizes the rule in a clearer, more logical manner and provides greater compliance flexibility,” and “increases consistency between construction, maritime, and general industry standards, and eliminates duplication.”

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On Tuesday, the Senate Subcommittee on Employment and Workplace Safety held a hearing to assess the need for safe patient handling and lifting standards. A number of panel members testified that health care workers experience a relatively excessive rate of musculoskeletal injuries due to manual patient handling and called for legislation and regulation to provide a “floor” for minimally acceptable working conditions. Legislation has already been introduced in both congressional chambers to accomplish this end. The Nurse and Health Care Worker Protection Act (S. 1788, H.R. 2381) was introduced in the Senate by Sen. Al Franken (D-MN) in October 2009, and in the House of Representatives by Rep. John Conyers (D-MI) last May.  Continue reading this entry at Littler’s Healthcare Employment Counsel blog.

Photo credit:  AlexRaths

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The Occupational Safety and Health Administration (OSHA) plans to conduct stakeholder meetings and solicit written comments on its current injury and illness recordkeeping collection methods in preparation for regulatory action to modernize the system. In a news release, OSHA’s Assistant Secretary of Labor David Michaels stated that the public meetings and written input “will help give OSHA direction to develop innovative ideas that will allow employers, workers and researchers to participate in improving occupational safety and health through the use of occupational injury and illness data.” As discussed in a summary of OSHA’s intent published in the Federal Register, these efforts will also support President Obama's Open Government initiative by increasing the ability of the public to easily find, download, and use the resulting dataset generated and held by the federal government.

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The Occupational Safety and Health Administration (OSHA) is seeking information and comment (pdf) on occupational exposure to infectious agents in health care and health care-related settings in order to determine whether it will take further regulatory action to limit the spread of occupationally acquired infectious diseases. According to a summary of this request published in the Federal Register, OSHA is interested in strategies that are being used in work settings where health care is provided (e.g., hospitals, outpatient clinics, clinics in schools and correctional facilities) and health care-related settings (e.g., laboratories that handle potentially infectious biological materials, medical examiner offices and mortuaries) to mitigate the risk of occupationally acquired infectious diseases. To that end, the agency seeks to collect “information and data on the facilities and the tasks potentially exposing workers to this risk; successful employee infection control programs; control methodologies being utilized (including engineering, work practice, and administrative controls and personal protective equipment); medical surveillance programs; and training.”

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On Wednesday, the House Workforce Protections Subcommittee held a hearing on the whistleblower and victim's rights provisions contained in the Protecting America’s Workers Act (PAWA) (H.R. 2067), a measure introduced by Rep. Lynn Woolsey (D- CA), chair of the subcommittee, last April. A companion bill (S. 1580) was introduced in the Senate by the late Sen. Ted Kennedy (D-MA) in August 2009. This bill would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, among other significant changes. The hearing on Wednesday focused on the bill’s provisions that would strengthen workplace whistleblower protections, and would give injured workers, their families and families of workers who died in work-related incidents the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.

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The Occupational Safety and Health Administration (OSHA) has released the final version of its Severe Violator Enforcement Program (SVEP), (pdf) the much-anticipated enforcement plan that will subject employers to more significant enforcement measures and penalties for willful, repeat, and failure-to-abate violations of the OSH Act. Such enforcement actions for severe violator cases include mandatory follow-up inspections, increased company/corporate awareness of OSHA enforcement, corporate-wide agreements where appropriate, enhanced settlement provisions, and federal court enforcement. The SVEP replaces the agency’s Enhanced Enforcement Program (EEP).

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The Department of Labor (DOL) has launched a website compiling enforcement data produced by the Office of Federal Contract Compliance Programs (OFCCP), Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA), Wage and Hour Division (WHD), and the Mine Safety and Health Administration (MSHA). Searchable compliance data includes OFCCP compliance evaluations and complaint investigations, EBSA cases that resulted penalty assessments, OSHA inspection case details, and concluded WHD compliance actions, among other information. The DOL explains that the purpose of the enforcement website is “to make the enforcement data, collected by these agencies in the exercise of their mission, accessible and searchable, using common search criteria, by the public. It intends, also, to engage the public in new and creative ways of using this data.” The DOL further notes that the site is a work in progress, and that “new features, functionality, and search criteria will be added over time.” For example, the agency is working on making enforcement data searchable by company name and address, as well as other criteria.

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During a recent live Q&A session, several officials from the Occupational Safety and Health Administration (OSHA) indicated that the agency plans to increase its enforcement efforts, including using the general duty clause to address ergonomic issues in the workplace. Participants in the chat included David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, and Deputy Assistant Secretary Jordan Barab. Other OSHA officials were on hand to discuss OSHA’s Strategic Planning Overview, which covers the agency’s mission, strategic goals and objectives, and general strategies for FY 2010 through FY 2016.

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On Tuesday, Rep. Dina Titus (D-NV) introduced the Ensuring Worker Safety Act (H.R. 4864), a bill that would allow the Secretary of Labor to review and order reforms to underperforming state Occupational Safety and Health (OSH) plans without first ordering their termination. Under current law, states may operate their own OSH plan or remain under federal Occupational Safety and Health Administration (OSHA) authority. States that elect to operate their own programs must demonstrate that their programs and standards are “at least as effective” as the federal framework. If a state OSH plan is found to be out of compliance with federal standards, OSHA’s only recourse is to terminate the state plan. The Ensuring Worker Safety Act would provide OSHA with greater options to hold state plans accountable.

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On Tuesday, the Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing on the penalty provisions contained in the Protecting America’s Workers Act (PAWA) (H.R. 2067), introduced by Rep. Lynn Woolsey (D- CA), chair of the subcommittee, last April. A companion bill (S. 1580) was introduced in the Senate by the late Sen. Ted Kennedy (D-MA) in August 2009. This bill would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, among other significant changes.

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The Occupational Safety and Health Administration (OSHA) has published in today’s edition of the Federal Register a proposed rule (pdf) that revises the notification requirements in the exposure determination provisions of the standards for hexavalent chromium (“Cr(VI)”). A direct final rule will be published in tomorrow’s edition. Specifically, the proposal would require employers to notify employees of the results of all exposure determinations, whether or not exposure exceeds the permissible exposure limit (PEL). Currently, the exposure determination provision of the chromium standard requires employers to determine the 8-hour time-weighted-average exposure for each employee exposed to Cr(VI), and notify employees exposed to levels that exceed the PEL. Under the general industry standard, notice has to be provided within 15 work days. For construction and maritime employees, employers must provide notice within 5 work days.

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Last week, the Senate confirmed the nomination of Cynthia L. Attwood to be a member of the Occupational Safety and Health Review Commission (OSHRC). The OSHRC is the independent federal agency responsible for adjudicating contests of citations or penalties resulting from an Occupational Safety and Health Administration (OSHA) workplace inspection. The agency, which functions as an administrative court, is also charged with establishing procedures for conducting hearings, receiving evidence, and rendering decisions.

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The Department of Transportation (DOT) will publish in tomorrow’s edition of the Federal Register a notice of proposed rulemaking (NPRM) (pdf) to amend certain drug-testing procedures to conform them to the Department of Health and Human Services (HHS) laboratory drug-testing requirements. According to a summary of the NPRM, the proposed changes are intended to create consistency with new requirements established by the HHS Mandatory Guidelines. Primary proposed changes include:

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As part of President Obama’s Open Government initiative, the Occupational Safety and Health Review Commission (OSHRC) has created a web site that provides information on the agency’s monthly case docket, chart of case activity, and briefing notices. The OSHRC is a quasi-judicial independent federal agency that presides over contests of OSHA inspection citations or penalties. The agency has also posted a link to its administrative law judge (ALJ) decisions that are pending OSHRC review.

Photo credit:   MBPHOTO, INC.

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The Occupational Safety and Health Administration (OSHA) will publish in tomorrow’s Federal Register a proposed rule (pdf) that revises its current Occupational Injury and Illness Recording and Reporting (Recordkeeping) requirements to restore a column to the OSHA 300 Log that employers would use to record work-related musculoskeletal disorders (MSD). This column for MSD was initially included in the 2001 Recordkeeping final regulation, but was deleted before it became effective. OSHA is seeking to reintroduce this reporting requirement, as it believes that the information generated from the MSD column will, among other things, improve the “accuracy and completeness” of national occupational injury and illness statistics, and “provide valuable and industry specific information to assist OSHA in effectively targeting its inspection, outreach, guidance and enforcement efforts to address workplace MSDs,” in addition to helping employers identify the incidence of such injuries.

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The Occupational Safety and Health Administration (OSHA) plans to withdraw its proposed rule (pdf) outlining revised PortaCount quantitative fit-testing protocols it intended to include in Part II of Appendix A of the agency’s Respiratory Protection Standard. OSHA claims the proposed protocols are not sufficiently accurate or reliable, noting that commenters to the proposed rule raised a number of valid concerns regarding the methodology used in testing the effectiveness of the protocols. Moreover, OSHA concluded that the study it used to test the protocols’ effectiveness was not conducted according to accepted experimental design practices and principles and did not properly or fully describe the fit-testing results, among other flaws. Therefore, the agency plans to re-evaluate the protocols, and may resubmit a proposed rule when the review is complete.

Photo credit:  borisyankov

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On Thursday, the Senate confirmed the nomination of David Michaels to serve as the Assistant Secretary of the Department of Labor’s Occupational Safety and Health Administration (OSHA). President Obama named Michaels as his pick in July. The Senate Health, Education, Labor and Pensions (HELP) Committee approved his nomination on November 18.

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The Occupational Safety and Health Administration (OSHA) has released a new guidance document, Best Practices for Protecting EMS Responders During Treatment and Transport of Victims of Hazardous Substance Releases (pdf), designed to help employers protect emergency medical service (EMS) workers in situations involving the release of hazardous substances. According to a press release, the compliance guide helps employers determine the type of training and personal protective equipment (PPE) needed in emergency situations by anticipating the EMS responder's role in a worst-case scenario, identifying hazards associated with the responder's assigned duties, and developing an emergency response plan detailing safe accomplishment of those duties.

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The Occupational Safety and Health Administration (OSHA) is seeking comment on its proposal to extend the Office of Management and Budget’s (OMB) approval of the information collection requirements set forth in the Personal Protective Equipment (PPE) Standard for general industry. OSHA’s information collection requirements under the general requirements for PPE include a hazard assessment of potential workplace hazards necessitating PPE, and verification that the assessment has been conducted. In addition, this standard requires that employers provide training and certification for each worker who is required to wear PPE. OSHA seeks comments on, among other things, whether these information collection requirements are necessary for the proper performance of the Agency’s functions, including whether the information is useful; whether OSHA’s estimate of the burden of the information collection requirements are accurate; the quality, utility, and clarity of the information collected; and ways to minimize the burden on employers who must comply with there requirements.

Comments must be submitted by January 22, 2010 and contain the identification number: OSHA-2009-0028. Comments sent via regular mail, hand delivery, express mail, messenger, or courier service must be provided in triplicate to the OSHA Docket Office, Docket No. OSHA-2009-0028, U.S. Department of Labor, Occupational Safety and Health Administration, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. In the alternative, comments can be made electronically to the Federal eRulemaking Portal at http://www.regulations.gov, or via fax if no longer than 10 pages to: (202) 693-1648.

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President Obama has announced his intent to nominate Cynthia Attwood to be a member of the Occupational Safety and Health Review Commission (OSHRC). The OSHRC is the independent federal agency responsible for adjudicating contests of citations or penalties resulting from an Occupational Safety and Health Administration (OSHA) workplace inspection. The agency, which functions as an administrative court, is also charged with establishing procedures for conducting hearings, receiving evidence, and rendering decisions.

According to a White House press release on her nomination, Attwood served for eight years as an Attorney Advisor for the Department of Labor's (DOL) Administrative Review Board, and then for three years as an Administrative Appeals Judge on this Board. In addition, Attwood spent more than 10 years in the Senior Executive Service at the DOL, both as the Associate Solicitor for Occupational Safety and Health and as the Associate Solicitor for Mine Safety and Health. After receiving her law degree from the University of Minnesota, Attwood began her career as a civil rights litigator at the Department of Justice.

Photo credit: dra_schwartz

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During a November 10 Senate subcommittee hearing on the H1N1 influenza virus (“swine flu”) and paid sick leave, Senator Chris Dodd (D-Conn.) announced that he plans to introduce a bill that would entitle most employees to take up to 7 days of paid sick leave to deal with the H1N1 or seasonal flu. According to a press release, under the terms of this bill workers would be entitled to the paid leave for their own flu-like symptoms, medical diagnosis or preventive care, to care for a sick child, or to care for a child whose school or child care facility has been closed due to the spread of flu. The decision to take this leave would be left to the employee’s discretion, although the Department of Labor could issue regulations requiring medical certification. If signed into law, the provisions of this bill would take effect 15 days after enactment, and sunset after 2 years.

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The Occupational Safety and Health Administration (OSHA) has created a website that contains guidance materials for employees and employers on how to reduce exposure to the H1N1 influenza virus (“swine flu”) in the workplace. Separate fact sheets recommending additional precautions are available for employers and workers in the health care industry.

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Rep. George Miller (D-Calif.), chairman of the House Education and Labor Committee, and Rep. Lynn Woolsey (D-Calif.), chair of the Workforce Protections Subcommittee, have introduced a bill that would provide up to five paid days of sick leave per year to employees who are told to miss work on account of a contagious illness. The stated purpose of the Emergency Influenza Containment Act (H.R. 3991) – which applies to employers with 15 or more employees – is to “ensure that American workers are able to follow, without financial harm, the recommendations of their employer and public health authorities to stay home when they have symptoms of a contagious disease that may put co-workers, customers, or the public at risk.” Under the terms of this legislation, which covers both full- and part-time workers, employees would be entitled to this paid leave only if they are sent home or advised to stay home by their employers. Employees who decide to stay home on their own claiming to be sick would not have access to this leave.

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In a presentation before the National Safety Council’s (NSC) annual Congress & Expo last week, the Occupational Safety and Health Administration (OSHA) revealed its preliminary list of the top ten most frequent workplace safety violations for 2009. According to a NSC press release, the number of top ten violations has increased almost 30 percent from the previous year. OSHA’s final report outlining the top ten violations will be published in the December edition of NSC’s Safety+Health magazine.

The following is an excerpt from the NSC’s press release describing the top ten violations:

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Seventy-seven bus and truck drivers are banned from operating commercial motor vehicles and 84 commercial carriers face enforcement charges as a result of the Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) first national drug and alcohol strike force. During a 10-day period in September, FMCSA safety investigators examined the drug and alcohol safety records of commercial drivers employed by bus companies, including school bus drivers, interstate passenger carriers, hazardous material transporters and general freight long-haul trucking companies. This enforcement action is the first time that the FMCSA has ever proactively looked for operators and drivers that violate the agency’s drug and alcohol regulations.

In a DOT press release, U.S. Transportation Secretary Ray LaHood said: “Violators of our drug and alcohol policies have no business driving a commercial vehicle. Programs like the drug and alcohol strike force are helping remove the most dangerous offenders from our roadways.” As a result of the strike force, the cited commercial drivers face civil penalties in addition to being prevented from operating commercial vehicles. The targeted employers are subject to charges that they unlawfully used a driver that has tested positive for illegal drugs and for not instituting a drug and alcohol program, among other violations. According to the FMCSA, among the goals of the strike force is to “identify motor carriers in violation of federal drug and alcohol testing requirements and to remove from the road commercial truck and bus drivers who jump from carrier to carrier to try and evade federal drug and alcohol testing and reporting requirements.”

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The Occupational Safety and Health Administration (OSHA) has published in today’s Federal Register an advance notice of proposed rulemaking (ANPRM) (pdf) calling for public comment, data, and other input to help the agency develop a standard to address the fire and explosion hazards associated with combustible dust. For the purposes of the ANPRM, “combustible dust” includes “all combustible particulate solids of any size, shape, or chemical composition that could present a fire or deflagration hazard when suspended in air or other oxidizing medium.”

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Sen. Al Franken (D-Minn.) has introduced the Nurse and Health Care Worker Protection Act of 2009 (S. 1788), legislation that would direct the Secretary of Labor to issue an occupational safety and health standard on safe patient handling and injury prevention, and require health facilities to implement safe patient handling plans consistent with the rule.  A companion bill (H.R. 2381) was introduced in the House of Representatives on May 13 of this year.

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The House of Representatives voted 409 to 11 yesterday to approve the Airline Safety and Pilot Training Improvement Act (H.R. 3371), a bi-partisan bill that would establish new flight safety standards and pilot training requirements. This legislation – which the House Transportation Committee approved without amendment on July 30 – would do the following:

• Establish the Federal Aviation Administration (FAA) Task Force on Air Carrier Safety and Pilot Training (“Task Force”) that would be comprised of air carrier representatives, labor union representatives, and aviation safety experts. The Task Force would be responsible for, among other things, evaluating best practices in the air carrier industry and providing recommendations on air carrier management responsibilities for flight crewmember education and support, flight crewmember professional standards, flight crewmember training standards and performance, and mentoring and information sharing between air carriers. Every 180 days the Task Force would report its findings to Congress and make recommendations for legislative and regulatory action.

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The Occupational Safety and Health Administration (OSHA) announced that it has started its one-year national emphasis program (NEP) (pdf) on recordkeeping to assess the accuracy of injury and illness data recorded by employers. Under this program, OSHA inspectors will conduct audits of at most 50 employers with at least 40 employees. No more than five worksites will be targeted per OSHA region. Those selected will be employers in one of 21 named industries that have reported the highest rates of missed work, restricted work activity, or job transfers. Such industries include animal (except poultry) slaughtering, scheduled passenger air transportation, foundries, concrete pipe manufacturing, soft drink manufacturing, and couriers.

The audit will include a safety and health walkaround inspection of the workplace on the first day of the review. The compliance officers will examine the employees' records in order to identify occupational injuries and illnesses that may have occurred to those employees from 2007 to 2008. OSHA will then compare its findings to the records the employer provided to the agency to find any discrepancies. As part of the NEP, OSHA will review medical records, workers’ compensation records, insurance records, payroll/absentee records and, if available, company safety incident reports, company first-aid logs, alternate duty rosters, and disciplinary records pertaining to injuries and illnesses. The agency will also review records that are stored offsite. Additionally, the OSHA compliance officers will conduct interviews with employees, management, the record keepers, and medical staff. If recordkeeping violations are identified, the inspectors will propose citations and penalties.

Those employers that currently participate in OSHA’s Voluntary Protections Programs or Safety and Health Achievement Recognition Program (SHARP) will be exempt from the NEP.
 

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Last Friday the Occupational Safety and Health Administration (OSHA) announced that its Site-Specific Targeting 2009 (SST) program (pdf) will focus its enforcement efforts on approximately 4,000 high-hazard worksites, including nursing homes and manufacturing establishments. The SST inspection program is based on injury and illness data from OSHA’s 2008 Data Initiative survey of 80,000 employers with 40 or more workers in industries with historically high occupational injury and illness rates. The agency uses this data to determine which work sites will receive comprehensive safety inspections.

According to a press release, this year’s SST program will not use one rate for all types of establishments, but rather will set minimum injury and illness rates for three separate categories of employers: manufacturing, non-manufacturing, and nursing homes. Doing so, the agency claims, will enable OSHA to inspect more facilities that exceed the minimum rate. In addition, some employers that did not respond to an OSHA Data Initiative survey will be automatically added to the inspection list. In a statement, acting Assistant Secretary of Labor for OSHA Jordan Barab said: “[t]hese inspections examine all aspects of a workplace's operations and the effectiveness of its safety and health efforts.”

The push for increased safety inspections is part of a larger enforcement trend within the Department of Labor (DOL). In June, Secretary of Labor Hilda Solis told attendees at the American Society of Safety Engineers’ annual conference: “Make no mistake about it: The Department of Labor is back in the enforcement business.” Jordan Barab similarly emphasized this sentiment, stating: “[t]he law says that employers are responsible for workplace safety and health, and there's a new sheriff in town to enforce the law."

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In anticipation of a resurgence of the H1N1 (“Swine”) flu, the U.S. Department of Health and Human Services’ (HHS) Centers for Disease Control and Prevention (CDC) has issued recommendations and strategies for employers to follow in order to minimize any potential outbreak. The Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season outlines steps employers should take in advance of the flu season, strategies to employ in the event an outbreak becomes severe, and guidelines to use in determining when an employee who is absent from work with the flu should return to the job.

Recommendations include reviewing or establishing a flexible influenza pandemic plan; having an understanding of the organization’s normal seasonal absenteeism rate; instituting more flexible sick-leave and telecommuting policies, especially in the event of school or childcare closings; encouraging seasonal flu vaccinations as well as the H1N1 vaccination when it becomes available; permitting higher-risk employees to work from home; and actively screening employees who report to work if the severity of the outbreak increases. The guidance also suggests that organizations assess their essential business functions to determine the minimum level of staffing needed to remain operational, and plan accordingly.

For more information on preparing the workplace for a flu outbreak, see Littler’s ASAP:
Swine Flu: Preparing the Workplace for a Pandemic  by: Steve McCown and
Donald W. Benson.

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On Wednesday, Sen. Edward Kennedy reintroduced the Protecting America’s Workers Act of 2009 (PAWA) (S. 1580), a bill that would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations. Sen. Kennedy had introduced this bill twice before, with then-Senator Obama acting as a co-sponsor in 2007. In April of this year, Rep. Lynn Woolsey (D-CA) introduced a companion bill (H.R. 2067) in the House of Representatives.

Highlights of the current bill include the following:

• Increased civil penalties for OSH Act violations
• Removal of the requirement that a workplace death must occur before criminal penalties can attach
• Provision of felony charges for repeat and willful violations that result in a worker’s death or serious injury
• Expansion of OSH Act coverage to include airline and railroad employees, as well as Department of Energy contractors
• Creation of regulations that give workers the right to refuse to do hazardous work
• Requirement that OSHA investigate all cases of death and serious injuries

The Senate version of PAWA has been referred to the Senate Committee on Health, Education, Labor, and Pensions.
 

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On Thursday, the House Committee on Transportation and Infrastructure approved by voice vote a bi-partisan bill that would establish new training and service standards for commercial pilots. Introduced by Rep. Jerry Costello (D-IL), Chairman of the House Aviation Subcommittee, along with 28 cosponsors, the Airline Safety and Pilot Training Improvement Act of 2009 (H.R. 3371) would, among other things, raise the minimum flight hours requirement for obtaining a commercial pilot’s license, implement measures to address pilot fatigue, and establish better pilot screening methods.

According to a press release issued by Rep. Costello, key provisions of the bill include:

• Requiring airline pilots to hold a Federal Aviation Administration (FAA) Airline Transport Pilot license (1,500 minimum flight hours required). This is an increase from the prior 250-minimum hour requirement.
• Establishing comprehensive pre-employment screening of prospective pilots that would include an assessment of a pilot’s skills, aptitudes, airmanship and suitability for functioning in the airline’s operational environment.
• Requiring airlines to establish pilot mentoring programs, create Pilot Professional Development Committees, modify training to accommodate new-hire pilots with different levels and types of flight experience, and provide leadership and command training to pilots in command.
• Creating a Pilot Records Database to provide airlines with fast, electronic access to a pilot’s comprehensive record. Information would include pilot’s licenses, aircraft ratings, check rides, Notices of Disapproval and other flight proficiency tests.
• Directing the FAA to update and implement a new pilot flight and duty time rule and fatigue risk management plans to more adequately track scientific research in the field of fatigue.
• Requiring air carriers to create fatigue risk management systems approved by the FAA.
• Requiring the FAA to ensure that pilots are trained on stall recovery and upset recovery, and that airlines provide remedial training on such maneuvers.
   

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After a lengthy public comment period and legal challenges, a U.S. Department of Transportation (DOT) drug testing regulation requiring employees of aviation, railroad, motor carrier, mass transit, pipeline and maritime industries who previously failed a drug test to partially disrobe and be directly observed during return-to-work and follow-up tests will go into effect August 31, 2009.  Continue reading at Littler's Workplace Privacy Counsel blog. 

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On Tuesday President Obama announced his intent to nominate David Michaels as the assistant secretary of the Occupational Safety and Health Administration (OSHA). Michaels, an epidemiologist, is currently a research professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services, where he also directs the Department’s doctoral program.

Prior to working at George Washington University, Michaels was nominated by former President Clinton to serve as Assistant Secretary of Energy for Environment, Safety and Health. His responsibilities included protecting the health and safety of workers, neighboring communities and the environment surrounding the nation’s nuclear weapons facilities. In that position, according to his biography posted on George Washington University’s website, Michaels “was the chief architect of the historic initiative to compensate workers in the nuclear weapons complex who developed cancer or lung disease as a result of exposure to radiation, beryllium and other hazards. Since its enactment in 2000, The Energy Employees Occupational Illness Compensation Program has provided more than $4.5 billion in benefits to sick workers and their families.” In addition, Michaels oversaw the promulgation of the Chronic Beryllium Disease Prevention and Nuclear Safety Management rules.

Michaels has written a book and a number of articles on workplace safety standards and contaminants, including Doubt is Their Product: How Industry's Assault on Science Threatens Your Health, Selected Science: An Industry Campaign To Undermine An OSHA Hexavalent Chromium Standard, Scientific Evidence and the Regulatory System: Manufacturing Uncertainty and the Demise of the Formal Regulatory System (pdf), Beryllium's Public Relations Problem: Protecting Workers When There Is No Safe Exposure Level (pdf), and Manufacturing Uncertainty: Contested Science And The Protection Of The Public's Health And Environment (pdf).

Michaels earned his undergraduate degree in History at the City College of New York, and his Master of Public Health degree in Epidemiology and doctoral degree in Sociomedical Sciences at Columbia University.

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A couple of bills introduced in recent weeks would have significant impact on the health care industry. A bill introduced last week by Rep. John Conyers (D-MI) would require the establishment of a safe patient handling and injury prevention standard for direct-care registered nurses and other health care workers. The Nurse and Health Care Worker Protection Act of 2009 (H.R. 2381) would order the Secretary of Labor to propose a standard under the Occupational Safety and Health (OSH) Act within one year of the bill’s enactment. The final standard – which would, among other things, eliminate manual lifting of patients through the use of assistive patient handling equipment and other mechanical devices – would be issued within two years of this date.

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On April 29, 2009 the World Health Organization (WHO) raised the pandemic alert level to Phase 5, with Phase 6 indicating that a global pandemic is under way. While most countries will not be affected at Phase 5 (characterized by human-to-human spread of the virus into at least two countries in one WHO region), the declaration of Phase 5 is a strong signal that a pandemic is imminent and that the time to finalize the organization, communication and implementation of the planned mitigation measures is short. (See our previous blog entry for additional coverage of this event).

The WHO warnings and 6-phase scale is directed primarily at governments and public health authorities. The U.S. is implementing its own pandemic plans, currently planning and taking action as if the WHO alert level will reach Phase 6. The Obama administration, however, is not closing the U.S.-Mexico border, or any other borders for that matter.

Employers should continue to monitor public health authorities (both state and federal) including changes to travel, public meeting guidelines and other pertinent updates. The CDC is the primary resource for up-to-date information and many agencies will defer to the CDC’s information. The CDC is issuing interim guidance for various professions and industries. Additional pandemic planning and checklists can be found on the CDC’s website and www.pandemicflu.gov.

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On April 28, both the House and Senate conducted hearings to address the adequacy of employer incentives for maintaining safe workplaces and penalties for violating Occupational Safety and Health (OSH) laws. Lawmakers in both chambers stressed the need for OSH reform.

The House Committee on Education and Labor’s hearing examined whether the Occupational Safety and Health Administration’s (OSHA) laws ensure that employers who fail to protect their workers are adequately penalized and deterred from committing future violations. Claiming that penalties against employers who commit OSH Act violations are “shockingly low,” Rep. Lynn Woolsey (D-Calif), Chair of the House Education and Labor Committee's Subcommittee on Workforce Protections, testified that the bill she introduced last week – the Protecting America’s Workers Act (PAWA) – would provide necessary OSH Act reform, including increased civil and criminal penalties for employers. A video of her testimony can be found here.

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The Obama administration declared a public health emergency regarding the swine flu outbreak to ensure that the Department of Health and Human Services has the resources it needs to respond quickly and effectively in the event that the pandemic threat level is raised.

The World Health Organization recently raised the alert level to phase 4 — level six being a full pandemic — meaning that there is sustained transmission among people in at least one country. Monday was the first time this alert level was raised above phase 3.  Secretary Janet Napolitano, head of the Department of Homeland Security, told reporters that the U.S. is preparing as if the swine flu outbreak is a full pandemic. President Obama assures the public that it is not a cause for alarm but rather a "heightened state of alert.” Labor Secretary Hilda Solis has recently stated that enforcing worker safety and health regulations would be one of her top priorities. 

Employers should assemble a pandemic team and devise a plan if they have not already done so. The team should develop a coordinated and efficient pandemic response plan so that the needed public health information is gathered and transmitted, and that communications to managers and employees about operations, cleaning protocols, leave of absences and benefits are consistent and effective. This information should be disseminated so anticipated disruptions are managed effectively while avoiding litigation risks and panic in the workplace.  

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A bill seeking to amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations was reintroduced last week. Drafted by Rep. Lynn Woolsey (D-Calif) and co-sponsored by 16 others, the Protecting America’s Workers Act (PAWA) (H.R. 2067) had been introduced in both the 109th and 110th Congresses without success. President Obama had been a co-sponsor of a previous version. The most recent version of PAWA contains even stiffer penalties than those proposed in the earlier versions. Recent workplace safety violations have focused attention on PAWA, so this bill could have more success this session. In fact, Labor Secretary Hilda Solis has recently stated that enforcing worker safety and health regulations would be one of her top priorities.

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President Obama has picked Thomasina Rogers as his nominee for Chair of the Occupational Safety and Health Review Commission (“OSHRC” or “Review Commission”). The OSHRC is a quasi-judicial independent federal agency created to decide contests of citations or penalties resulting from Occupational Safety and Health Administration (OSHA) workplace inspections. As Chair, Rogers would be in charge of the administrative operations of the Review Commission, as well as participate with other commissioners in case adjudication.

Rogers was appointed to the Review Commission in 1998 by former President Bill Clinton, and served as Chair from 1999-2002. She was reappointed in April 2003. In 1994, Rogers served as a chair of the Administrative Conference of the U.S. until its dissolution at the end of 1995. In addition, Rogers served for seven years in the Federal Government's Senior Executive Service (SES). While at the SES, Rogers worked as legal counsel to the Equal Employment Opportunity Commission (EEOC), where she had primary responsibility for managing the development of the Americans With Disabilities Act (ADA) employment regulations.

Rogers is a graduate of Northwestern University and Columbia University School of Law.

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The Occupational Safety and Health Administration (OSHA) has released its revised Field Operations Manual (FOM). (pdf)  According to an OSHA news release, this document, formerly known as the Field Inspection Reference Manual, “constitutes OSHA's general enforcement policy and procedures for use by the agency's field offices in conducting inspections, issuing citations and proposing penalties. It is the guiding document for OSHA's compliance officers, whose mission is to assure the safety and health of America's working men and women.”

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The Occupational Safety and Health Administration (OSHA) has published a new guidance document on its respiratory protection standard. The document, Assigned Protection Factors for the Revised Respiratory Protection Standard, (pdf) provides employers with information for selecting respirators for employees exposed to airborne contaminants.

The Respiratory Protection standard applies to general industry, construction, longshoring, shipyard and marine terminal workplaces, and governs fit testing, medical evaluations, specific training and proper respirator use.

OSHA revised its existing Respiratory Protection standard in 2006 to add Assigned Protection Factors (APF) and Maximum Use Concentration (MUC) provisions. The APF is the workplace level of respiratory protection that a respirator or class of respirators is able to provide to workers. Employers use APF numbers to select the appropriate class of respirators to provide the necessary level of protection against airborne contaminants. According to OSHA’s Deputy Assistant Secretary of Labor Donald G. Shalhoub: “proper respirator selection prevents exposure to hazardous contaminants and is an important component of an effective respiratory protection program. . . . This guidance document serves as another useful resource for protecting the health and safety of workers at risk for respiratory illnesses.”
 

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In the wake of heavy criticism and a lawsuit filed by seven major airline companies, the Federal Aviation Administration (FAA) has decided to revoke its revised pilot and flight attendant rest rules for long-range flights. Instead, the agency announced it will work with airlines to study safety measures over the coming year.

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As predicted, Rep. George Miller (D-CA), chairman of the House Education and Labor committee, Rep. John Barrow (D-GA), and Rep. Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee, have reintroduced a bill that would regulate combustible dust exposure at industrial sites. The Worker Protection Against Combustible Dust Explosions and Fires Act (CDEFA) (H.R. 849), introduced on Wednesday, would require the Occupational Safety and Health Administration (OSHA) to issue interim rules on combustible dust within 90 days, followed by final rules within 18 months. CDEFA also would direct OSHA to revise the Hazard Communication Standard to include combustible dusts.

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The Occupational Safety and Health Administration (OSHA) has issued an advanced notice of proposed rulemaking regarding the development of a standard that addresses occupational exposure to diacetyl and food flavorings containing diacetyl. Occupational exposure to diacetyl has been linked to the lung disease commonly known as “popcorn lung.”

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The Occupational Safety and Health Administration published a notice of proposed rulemaking in the January 21 Federal Register that addresses the fit-test procedures for respiratory protection face masks. The rule would add two PortaCount® quantitative fit-testing protocols to the OSHA Respiratory Protection Standard (29 CFR 1910.134). Employers in general industry, shipyard employment, and the construction industry would be affected by this change.

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The Mine Safety and Health Administration (MSHA) and the National Institute for Occupational Safety and Health (NIOSH) published a proposed rule Friday in the Federal Register that establishes criteria for approving “continuous personal dust monitors,” new devices worn by miners to report coal dust exposure levels on a real-time and continuous basis. This proposal updates the application requirements for existing coal mine dust personal sampler units (CMDPSUs) that are currently used. The proposed rule addresses only the standards for approving the device requirements; it does not change regulations on how these sampling devices should be used.

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On the last day of 2008, the Department of Labor’s Mine Safety and Health Administration (MSHA) published two final rules in the Federal Register setting standards for underground mine operations. One final rule requires underground mine operators to use flame-resistant conveyor belts and institute other fire protection measures. This rule implements recommendations set forth in a report released last year by a technical study panel established under Section 11 of the Mine Improvement and New Emergency Response (MINER) Act of 2006. According to a press release issued by the MSHA, the final rule mandates that underground coal mine operators:

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Emily Spieler, an academic and employee advocate, has been selected as the Obama Transition Team leader on issues related to the Occupational Safety and Health Administration. As such, Spieler will be charged with, among other things, vetting candidates for the position of Assistant Secretary of Labor for OSHA.

Spieler is currently the Dean and Edwin W. Hadley Professor of Law at Northeastern University School of Law in Boston. Prior to teaching, she worked as a public interest attorney, focusing her practice on the legal problems of workers, particularly those injured on the job. Her positions include serving as a special assistant attorney general for the Massachusetts Department of Public Health's Lead Poisoning Prevention Division, Commissioner of West Virginia’s Workers’ Compensation Fund, and West Virginia’s first deputy attorney general for civil rights. Spieler has also served as a member of the state’s Human Rights Commission. Additionally, she has held a position on the National Institute for Occupational Safety and Health.

Spieler is a very accomplished individual and seems to be more than qualified to implement Obama’s vision for OSHA. She has written extensively on workers’ compensation and occupational safety issues, and, according to all indications, is a proponent of legal intervention in the private sector to encourage and promote workplace safety. For instance, she would likely support providing employees with additional avenues of recovery for workplace injuries; encouraging safety through the use of inspections and greater oversight in the workplace; increasing the use of penalties to gain compliance; and better review of the process for rulemaking and enforcement.

Obama has a clear vision that OSHA will be a very active, well supported agency. The selection of Spieler is another indication that the Obama Administration will stand behind its goal of focusing on increasing workplace safety oversight and enforcement. Spieler has already received requests that the next Assistant Secretary of Labor have an extensive background and training in occupational health and safety and a lifelong commitment to occupational health and safety. In addition to these traits, Spieler will certainly seek out candidates that support the reintroduction and implementation of ergonomics regulations; implementation of more extensive combustible dust standards; and other workplace safety programs that will increase employer obligations to provide safer workplaces. Spieler may be in charge of this vetting process, but she would seem to make the best candidate for the possession herself, and if not her, it will certainly be someone who shares her vision on safety in the workplace.

Jeremy Stewart, an associate in Littler’s Chicago office, and Littler’s Workplace Safety Team contributed to this article.
 

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In a final rule published December 12, 2008, the Occupational Safety and Health Administration (OSHA) allows employers who violate the agency’s rule on personal protective equipment (PPE) to be penalized on a per-employee basis. Previously, employers who failed to provide PPE to covered employees could be issued a citation for the aggregate offense only. Under the new rule, each instance in which any one employee is not provided with PPE or applicable safety training is deemed a separate OSH violation.

This rule does not, however, create any new OSHA safety and health standards or make substantive changes to the existing law. It merely clarifies an employer’s duty to provide PPE (including eye, hand, face, head, foot and hearing protection, respirators, and other forms of PPE) to each employee under the various respirator and training standards articulated in 29 CFR Parts 1910 through 1926.

The impetus for this rule was the Occupational Safety and Health Review Commission’s decision – later affirmed by the U.S. Court of Appeals for the Firth Circuit – that a Houston businessman who failed to provide respirators or safety training to 11 undocumented employees who handled asbestos could not be charged with safety violations for each employee, as the plain language of the safety standard addresses employees in the aggregate, not individually. Secretary of Labor v. Erik K. Ho, Ho Ho Ho Express, Inc. and Houston Fruitland, Inc., 20 O.S.H. Cas. (BNA) 1361 (Rev. Comm’n 2003), aff’d, Chao v. OSHRC and Erik K. Ho, 401 F.3d 355 (5th Cir. 2005).

In response, the final rule firmly states that:

The agency is proposing to amend its standards to make it unmistakably clear that each covered employee is required to receive PPE and training, and that each instance when an employee subject to a PPE or training requirement does not receive the required PPE or training may be considered a separate violation subject to a separate penalty.

This rule is yet another example of OSHA adopting a rule to expand and clarify its enforcement power. On February 13, 2008, a final rule became effective that set forth a scheme by which employers are required to pay for nearly all PPE, with limited exceptions. (72 Fed. Reg.64341-64440.)   While that rule sets forth the obligation to provide nearly all PPE in the workplace, this rule will create an extra incentive because it will force employers to be in compliance or be faced with multiple violations where they would have on faced single violation in the past. Thus, employers should be aware that should they fail to provide the necessary PPE, they could face substantially increased fines under the new rule, which goes into effect January 12, 2009.
 

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On December 2, OSHA announced that it extended the comment period on the agency’s Cranes and Derricks Proposed Rule until January 22, 2009. (73 Fed. Reg. 73197) This proposed rule addresses primary hazards associated with construction cranes and derricks and has received broad support among users of the equipment, labor organizations, crane operator trainers and testers, the insurance industry, and suppliers. Many home builder organizations, however, have opposed the provision dealing with operator certification requirements. Part of the reason why these and other organizations oppose this rule is the lack of entities that are recognized and approved to provide the certification required under this standard. OSHA believes that a four-year phase in period is enough time for additional certification organizations to enter the market, though there is simply no guarantee. Limited competition in the commercial sector will likely cause long waits and high costs for certification.

The proposed rule requires, among other things, that employers determine if the ground is able to support the weight of hoisting equipment and loads to be carried, and assess hazards that could affect the equipment’s safe operation. The proposal also mandates that crane operators be trained and certified.

According to OSHA, the length and complexity of the proposed rule is what necessitated the extended comment period. Any employer interested in commenting on the proposed rule may do so electronically at www.regulations.gov, or may send them by mail to OSHA Docket Office, Docket No. OSHA-2007-0066, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Comments 10 pages or fewer may be submitted via facsimile to 202-693-1648. Contact Jay Sumner of Littler Mendelson’s Governmental Affairs Team if you need more information about this rule, and/or would like assistance in filing comments.
 

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Workplace safety has been touted as a top priority for the Obama Administration. Increased safety measures, however, often come at a high price for employers. A number of failed bills introduced during the Bush Administration will likely get a second viewing by the 111th Congress. These measures include:

• Protecting America’s Workers Act (PAWA) (H.R. 2049, S. 1244). This Act amends the Occupational Safety and Health Act (“OSH Act”) by, among other things, increasing civil and criminal penalties for employer violations, lowering the threshold for holding an employer criminally responsible for an employee’s death, and providing for felony charges for an employer’s repeated and willful violations that result in a worker’s death or serious injury. Additionally, revised regulations would likely require employers to go even beyond their current obligations, and shoulder the entire financial burden in providing personal protective equipment (PPE) to employees.
• Worker Protection Against Combustible Dust Explosions and Fires Act of 2008 (CDEFA) (H.R. 5522). This act would mandate a final rule regulating combustible dusts in the workplace, and would apply to manufacturing, processing, blending, conveying, repackaging, and handling of combustible particulate solids and their dusts. CDEFA would not apply to processes already covered by OSHA’s standard on grain facilities. This law would impact a broad spectrum of industries that manufacture, process, or otherwise handle materials that produce combustible dusts, requiring them to implement dust assessment, control, and employee safety training programs, among other obligations. Because the rules that would accompany this act have not been established, it is not yet clear how much this will cost the private sector. To the extent CDEFA does not overlap with preexisting rules and standards, it could be very costly to employers not in compliance with the final rule.
• Nurse and Patient Safety Protection Act of 2007 (H.R. 378). This act would have directed OSHA to issue new ergonomics regulations for the health care industry. This bill was in response to President Bush’s repeal of the highly controversial ergonomics regulations issued by OSHA during the Clinton Administration. Under the Congressional Review Act, Congress was able to rescind the regulations, and OSHA is not permitted to issue new ones without Congressional approval. Since any new ergonomics regulations must go through the legislative process, business interests will have the opportunity to voice opposition to bills such as the Nurse and Patent Safety Protection Act, which will likely emerge during the Obama Administration.

These and other safety–related measures will be closely followed
 

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