OSHA Enforcement Update

 

OSHA recently has taken several enforcement actions, including proposing a new rule that affects record-keeping obligations, changing its enforcement stance on an existing rule and updating two different inspection procedures.

The new record-keeping rule, published July 29, clarifies that employers have an “ongoing obligation” to keep and maintain accurate injury and illness records, and that duty exists even if the employer fails to record an incident. This includes entering every recordable case on their injury log, and updating that log to include cases not previously recorded.

photo source: altres.com
photo source: altres.com

The proposal is in response to a 2012 case in which the U.S. Court of Appeals for the District of Columbia Circuit ruled OSHA citations for record-keeping violations must be issues within six months of an alleged failure to record the injury or illness. This ruling overturned OSHA’s stance that the agency had five-and-a-half years to issue such a citation – five years covering the time period in which the injury’s record must be maintained plus a six-month statue of limitations.

“Accurate records are not simply paperwork, but have an important, in fact lifesaving purpose,” OSHA administrator David Michaels said in a press release. “They will enable employers, employees, researchers and the government to identify and eliminate the most serious workplace hazards – ones that have already caused injuries and illnesses to occur.”

OSHA also is changing how it enforces its Process Safety Management Standard. In a July 22 interpretation of the standard, OSHA said exemption from the rule applies only to retail trade facilities with the North American Industry Classification System codes of 44 and 45. The facilities include hardware stores, office supply stores and automotive dealers.

Previously, OSHA identified retails facilities as those that sold more than half of their highly hazardous chemical products to farmers. This allowed large facilities that stores and sold large amounts of chemicals to be considered exempt. One such facility was the West Texas Fertilizer Co. facility in West TX, which possessed more than 50,000 pounds of ammonium nitrate that later exploded and killed 15 people in 2013.

For a six-month period, OSHA will engage in outreach activities to educate and assist employers affected by the new interpretation. During this time period, the agency will exercise “enforcement discretion” and refrain from citing PSM standard violations at facilities that had been considered exempt from the rule.

Inspection Procedure Updates

OSHA issued two new instruction documents outlining inspection procedures for the agency’s compliance officers.

One document details revisions made to the agency’s updated Hazard Community Standard, including standardized labeling for hazardous chemicals and the required format and content for Safety Date Sheets. The instruction also explains how inspectors should enforce the standard during the transition period leading up to to June 1, 2016 – the deadline for full implementation of the rule.

Upcoming compliance deadlines for the new standard include:

  • December 1, 2015: Distributors must comply with labeling provisions
  • June 1, 2016: Employers must update alternative workplace labeling and hazcom programs and provide additional employee training for newly identified hazards.

During the transition period before the effective dates, employers may comply with either the updated standard or the old rule. Employers found not to be in compliance with either standard could be cited.

To date, employers should have already trained employees on the new standard and be complying with the revised SDS requirements, and manufacturers and importers should be complying with new labeling provisions.

The other OSHA directive updates procedures for carrying out inspections and issuing citations for workplace exposure to tuberculosis. The document is based on public health guidance from the Centers for Disease Control and Prevention.

Among the changes, the directive introduces a new screening method for examining blood for Mycobacterium tuberculosis; decreases the frequency of worker screening; and classifies health care settings as “low risk,” “medium risk” and “potential ongoing transmission,” according to a July 13 press release.

OSHA states that the directive which replaces instructions from 1996, does not add any “enforcement burdens for employers.”

About 383 of the 9,582 U.S. tuberculosis cases in 2013 affected health care workers, according to CDC. Health care workers are at risk for multi-drug-resistant and extremely drug-resistant tuberculosis, the release states.

-The National Safety Council; OSHA Up To Date (Vol. 44, No. 10 | October 2015)