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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “OSHA Withdraws ‘Fairfax Memo’ – Union Representatives May No Longer Participate in Work Place Safety Walkarounds at Non-Union Facilities.”

Following is an excerpt:

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround representative” during an OSHA workplace investigation. …

Read the full post here.

United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation Letter (the “Letter”), which sets forth the agency’s position that an employee of a union that does not represent the workers at the site may accompany the OSHA representative conducting an inspection. The Federation argued on behalf of itself and one of its members because OSHA had permitted a representative of the Service Employees International Union (“SEIU”) to accompany him despite the fact the SEIU did not represent the workers at the facility. The lawsuit asserts that in allowing this, OSHA had violated its own rules and gave the union rights that it did not have under the law. In the Letter, issued in February 2013, OSHA gave a new definition of “reasonably necessary,” which supported its holding, for the first time, that a third party’s presence would be deemed “reasonably necessary,” if OSHA concluded that the presence of the third party “will make a positive contribution” to an effective inspection. The NFIB’s lawsuit contradicted both the OSHA statute itself and OSHA regulations issued in 1971 following formal rulemaking.

While OSHA asked the Court to dismiss the lawsuit, claiming that the NFIB lacked standing to bring the lawsuit because it could not demonstrate that it had been harmed, and that the lawsuit was procedurally flawed for a number of other reasons as well, Judge Sidney A. Fitzwater denied the U.S. Department of Labor’s Motion to Dismiss, finding that “NFIB as stated a claim upon which relief can be granted,” and that “the Letter flatly contradicts a prior legislative rule as to whether the employee representative” in such a walk-around inspection “ must himself be an employee.”

The rule Judge Fitzwater referred to, 29 U.S.C Section 1903.8(c) contained OSHA’s policies for what are referred to as “safety walk-arounds,” which are on site workplace inspections. The Letter gives employees in the workplace the right to have a representative present during such an inspection. OSHA’s own rules make clear that such “authorized representative(s) shall be an employee(s) of the employer,” but that when “good cause is shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.” (emphasis added)

If the ultimate outcome of the case, which seems likely, is a finding that OSHA does not have the authority to permit union representatives to participate in OSHA inspections of workplaces where they do not represent the workers, the effect would be to deny unions a potentially potent tool for organizing. As Judge Fitzwater described in his Memorandum and Order, unions such as the UAW in its ongoing organizing campaign at Nissan in Tennessee have come to rely upon participation in OSHA inspections as a valuable tool.

While it is too soon to say whether the Department of Labor will continue to defend the 2013 Letter and the position that OSHA has the right to permit union representatives to participate in safety and health inspections, Judge Fitzwater’s denial of the motion to dismiss raises serious doubt as to the long term viability of OSHA’s position.

Our colleague Valerie Butera, a Member of the Firm at Epstein Becker Green, has a post on the OSHA Law Update blog that will be of interest to many of our readers in the retail industry: “OSHA’s New Electronic Recordkeeping Rule Creates a Number of New Pitfalls for Employers.”

Following is an excerpt:

On May 12, 2016, OSHA published significant amendments to its recordkeeping rule, requiring many employers to submit work-related injury and illness information to the agency electronically.  The amendments also include provisions designed to prevent employers from retaliating against employees for reporting injuries and illnesses at work.  The information employers provide will be “scrubbed” of personally identifiable information and published on OSHA’s website in a searchable format. …

OSHA plans to rely upon computer software to remove personally identifiable information from these records.  The software will supposedly remove all of the fields that contain identifiers such as the employee’s name, address, and work title, and to search the narrative field in the form to ensure that no personally identifiable information is contained in it.  OSHA’s reliance on a computer system to detect every piece of identifiable information in a narrative is terribly risky and increases the potential for a data breach.

Read the full post here.

Valerie ButeraGuest post from the OSHA Law Update blog, by our colleague Valerie Butera, at Epstein Becker Green.

Retailers, get ready for OSHA’s revised recordkeeping and reporting rules, effective January 1, 2015.

As I note in my Act Now Advisory—“What Do OSHA’s Revised Recordkeeping and Reporting Rules Really Mean for Retailers?”—several additional retail industries will be required to keep records of serious occupational injuries and illnesses, and several are no longer subject to the rules. The new reporting requirements apply to all retailers, even those included in the exempt list.

See the advisory for more information—below is an excerpt of my tips for retail employers:

  • Train your safety and human resource professionals and your managers on the new reporting requirements.  Again, all retailers must promptly report to OSHA any fatalities, amputations, loss of eye incidents, or in-patient hospitalizations.
  • Be aware that you can report to OSHA by:
    1. Calling OSHA’s free and confidential number: 1-800-321-OSHA (6742)
    2. Calling your closest Area Office during normal business hours
    3. Using the new online form that will soon be available on OSHA’s website
  • If you have retail establishments in one or more of the jurisdictions with a state plan, contact the state plan’s office to determine when you must comply with the rule and if the state plans’ reporting rules have additional requirements.  OSHA has encouraged state plans to require compliance by January 1 but recognizes that not all plans will be able to do so.
  • Contact counsel for advice on how to best navigate an OSHA inspection to ensure your preparedness should OSHA decide to investigate the circumstances leading to a reportable injury or illness.
  • To the extent that any of these newly reportable incidents have taken place at any of your retail establishments in the past, review the details of the incident and audit that facility and others that you believe may pose safety concerns.  Identify safety hazards and address any possible health or safety hazards that you discover.
  • If you are among the newly identified retail industries required to complete OSHA’s injury and illness recordkeeping, seek assistance from counsel in navigating these very complex requirements.  Ensure that safety and human resource professionals in your organization are properly trained and fully understand how and when to record an occupational illness or injury in your OSHA logs.
  • Retailers that have already been subject to the recordkeeping standard should review their logs to spot potential trouble spots, and provide refresher training to safety and human resource professionals in order to help ensure full compliance with the rules.

By Valerie Butera

With the holiday shopping season fast approaching, OSHA has reached out to retailers strongly encouraging them to adopt a set of Crowd Management Safety Guidelines for Retailers, in addition to their existing safety and health policies and procedures.

Citing the tragic death of a retail employee who was crushed during a stampede at a Black Friday event in 2008, OSHA has urged the adoption of these crowd control protocols as a critical step for employers and store owners to take in ensuring employee safety during the holiday shopping rush, and other events where large crowds may gather.  OSHA recently sent letters directly to major retailers, retail trade associations, and fire marshals enclosing its recommended crowd management guidelines and encouraging employers and first responders to establish a plan well ahead of events likely to draw large crowds, such as Black Friday.

Crowd management plans should include, at a minimum:

  • Barricades or rope lines that do not start immediately in front of store entrances to manage pedestrian traffic;
  • Police officers or other trained security or crowd management personnel on site;
  • Communication to shoppers of updated information about the event and the store, such as the location of entrances and exits, store opening and closing times, and the location of hot items within the store;
  • Additional staff sufficient to meet the needs of large crowds of customers;
  • Crowd management training for all employees to ensure that they understand how to manage the event;
  • Prevention of additional shoppers from entering the store when it is at or near its maximum occupancy level;
  • Clear and unobstructed pathways to all exit doors, which should be unlocked;
  • Emergency procedures in place in case a dangerous situation does arise; and
  • Instructions to employees that in the event of an emergency they should follow instructions from first responders regardless of company rules.

If they have not already done so, retailers should begin crowd management planning for Black Friday now.  Reach out to local police and other first responders to inform them if large crowds are expected at your stores on Black Friday and coordinate a response plan in case an emergency takes place.  Taking time to employ these simple measures will go a long way towards ensuring that employees enjoy a safe and healthy holiday season.

On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

To access the full blog post, please click here.

 

Our colleague Eric Conn, Chair of Epstein Becker Green’s OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA’s Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

This webinar is the first of a five-part series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.

Read more about the webinar and the series, or click here to register.

The OSHA Law Update blog has an update on the government shutdown: “OSHA Shutdown – Government Shutdown Strips OSHA to a Skeleton Crew,” by Casey Cosentino and Eric Conn of Epstein Becker Green.

Following is an excerpt:

The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.

Read the full post here.

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green, P.C.

Last month, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers provide and maintain adequate means of exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes and doors that comply with 29 C.F.R. 1910 Subpart E – Means of Egress (specifically, the various requirements of 1910.36).  The memo was issued in response to a deadly explosion and ammonia release at a poultry processing plant in China on June 4, 2013, in which at least 120 employees lost their lives, many because they were unable to exit the plant due to blocked or locked exits.

In the enforcement memorandum, OSHA announced that:

“During inspections of all workplaces [Compliance Safety & Health Officers] should be mindful of whether the employer has provided and maintained adequate means of egress from work areas; e.g., adequate number of exit routes are provided, exit routes are free and obstructed, and exit doors are not locked.”

This list of items for review is consistent with the criteria OSHA identified in its Emergency Exit Routes Fact Sheet.  Here are the basic requirements for complying 1910.36 set forth in OSHA’s regulations and the Fact Sheet:

  1. Employers must determine how many exits routes are required in its building.  As a general rule, workplaces must have a minimum of two exits, and possibly more based on the number of employees, the size of the building, and the arrangement of the workplace.  One exit route may be allowed if the size of the building, its occupancy, or arrangement allows all employees to evacuate safely.
  2. Exit routes must be maintained unobstructed, and the exit doors must remain unlocked from the inside.  Specifically, exit routes must be free of stored materials, equipment, and especially explosive or highly flammable furnishings.  Exits doors must be conspicuous, visible, free of decoration, and unlocked from the inside.
  3. Exit routes and doors must be properly labeled and maintained.  Proper labels include signs that read “EXIT” or “TO EXIT” in plain legible letters, and maintained with adequate lighting.  Doors or passages along the exit route that are not exits and do not lead to exits must be marked as “NOT AN EXIT” or labeled such that their non-exit purpose is obvious (e.g., store room, office, etc.).

Although the Enforcement Memorandum features the tragic anecdote about the Chinese poultry plant, OSHA’s Director of the Directorate of Enforcement specifically instructs his enforcement team to look out for egress issues in inspections at “all workplaces.”  In 2012, even before OSHA’s national office expressed this new focus on the egress issue, OSHA issued approximately 1,000 citations regarding exit routes and doors to employers across all different types of industries, with proposed fines totaling nearly $1M.

Retailers and hospitality entities (as well as other employers with multiple establishments) should be particularly attuned to this issue for several reasons.  First, even without this directive from OSHA’s national office, year after year, 1910.36 continues to be one of the five standards most frequently cited against employers in these industries.  Second, whereas in most workplaces, exits and exit routes are intended for egress of employees only, in retail and hospitality locations, emergency exits are there for both employees and patrons, which increases the scrutiny on the issue.  Third, OSHA has launched at least two special emphasis enforcement programs (one in Delaware and another in Pennsylvania) focused on retail establishments, and looking at egress issues as one of the top focus areas.

Finally, although initial fines for egress-related violations are typically only $2,000 or less, OSHA now treats related workplaces within a corporate family as one workplace for purposes of Repeat violations, which carry penalties up to $70,000 per violation.  This has been the primary weapon OSHA has used to drive up penalties against employers with multiple workplaces, like retailers and hospitality employers.  By actively pursuing more Repeat violations, OSHA is issuing much higher penalties.  Over the past four years, OSHA has increased the number of Willful and Repeat violations it has issued by more than 200%.

Daniel C. Deacon, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s Washington, DC office, contributed to the preparation of this post.

by: Eric J. Conn

What do manufacturers, nursing homes, and chemical companies have in common?  They all represent industries receiving special enforcement scrutiny from today’s OSHA.

OSHA is targeting manufacturers under a major Recordkeeping Enforcement National Emphasis Program (Recordkeeping NEP).  OSHA launched the Recordkeeping NEP at the end of 2009, originally selecting inspection targets across a wide array of industries.  A senior OSHA official has explained that “there are several different goals here.  One is just to find out what’s going on.  Another is to send a message to companies – via penalties – that injury and illness book-cooking won’t go unpunished.”  However, the inspections were not yielding the significant enforcement actions that OSHA expected, so OSHA suspended the NEP, evaluated the data it had been collecting, and decided to re-focus the Recordkeeping NEP almost exclusively on manufacturers.  See this article describing the new manufacturing focus of the Recordkeeping NEP.  Since re-launching the NEP with this focus on manufacturers, OSHA has been finding the serious violations it expected, including a remarkable set of Recordkeeping citations against one manufacturer with a penalty exceeding $1.2 Million.  See the OSHA Press Release about this enforcement action.

Nursing care is the other industry primarily subject to scrutiny under OSHA’s Recordkeeping NEP.  In addition, the nursing care industry is being targeted by OSHA under its 2010 Site-Specific Targeting Program (“SST”).  Under the SST, OSHA has selected hundreds of nursing care facilities for compliance inspections focusing on prevalent injuries and illnesses facing health care workers, such as ergonomic injuries related to handling patients, exposure to blood and airborne pathogens and other potentially infectious materials, Tuberculosis, workplace violence, and slips, trips and falls.  See OSHA’s Press Release announcing the SST program.  Finally, within the next couple of months, OSHA is preparing to launch a third special emphasis program targeting nursing care employers, the Nursing Home NEP.  The Nursing Home NEP, which was prompted by the industry’s reports of high injury and illness rates, is expected to last at least three years, to cover a large number of nursing care facilities, and to focus, like the SST inspections, on infectious diseases, physical stresses from lifting patients, and violent patients.

Finally, OSHA is in the midst of a major enforcement initiative targeting chemical manufacturers and processors, known as the “PSM Covered Chemical Facilities National Emphasis Program” (Chemical NEP).  See this article describing OSHA’s Chemical NEP.  Under the Chemical NEP, OSHA is conducting aggressive inspections of chemical plants covered by OSHA’s Process Safety Management Standard (“PSM”).  Since OSHA initiated the Chemical NEP, and its predecessor Petroleum Refinery PSM NEP, OSHA has been bringing significant enforcement actions (the Refinery NEP resulted in more than 1,000 citations and fines exceeding $4 Million).  While the Chemical NEP is currently operating as a pilot program, the early success of the program has prompted OSHA to replace it with a much farther reaching enforcement initiative.  This will expand the Chemical NEP nationwide, and will dramatically increase the number of chemical manufacturers targeted by OSHA for PSM NEP inspections.

Now is the time for manufacturers and nursing care employers to make certain their OSHA records are in order, and for chemical manufacturers to ensure their PSM Programs are current and accurate, and for employers in all three of these industries to take the necessary measures to minimize or mitigate workplace injuries and illnesses.