Coronavirus Crisis: OSHA Establishes Interim Inspection Priorities

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On April 13, 2020, the Occupational Safety & Health Administration (“OSHA”) published an Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). The Plan identifies “[h]igh and very high exposure risk jobs” which will receive priority by the agency in its enforcement activities during the crisis. The Plan states:

“High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. The aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.”

 Several OSHA standards may apply to workplace hazards created by COVID 19:

  •    Recording and Reporting Occupational Injuries and Illness (29 CFR 1904)
  •    General Requirements – Personal Protective Equipment (29 CFR 1910.132)
  •    Eye and Face Protection (29 CFR 1910.133)
  •    Respiratory Protection (29 CFR 1910.134)
  •    Sanitation (29 CFR 1910.141)
  •    Specification for Accident Prevention Signs and Tags (29 CFR 145)
  •    Access to Employee Exposure and Medical Records (29 CFR 1910.145)
  •    General Duty Clause

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Are Employee Homes Subject To OSHA Inspections & Reporting?

By Robert G. Chadwick, Jr. , Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In the wake of the COVID-19 threat, many employees are working from improvised home work sites. So, what does this mean for OSHA compliance and enforcement?

In 2000, OSHA issued a Directive which purports to answer this question.

Inspections of Home Offices

Under the Directive, OSHA clarified that it would not conduct inspections as to office work activities in a home-based work site. Such activities include filing, scanning, copying, printing, telephone calls, reading, writing and computer work. The Directive states: “OSHA will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees.”

Inspections of Other Home Work Sites

The Directive nevertheless states: “OSHA will .. conduct inspections of other home-based worksites, such as home manufacturing operations, when OSHA receives a complaint or referral that indicates that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, including reports of a work-related fatality.” The directive adds: “Employers are responsible in home work sites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee’s home.”

Injury and Illness Reporting

The limitations on OSHA inspections do not affect the reporting of work-related injuries and illnesses. In this regard, the Directive states: “Employers who are required, because of their size or industry classification, by the OSH Act to keep records of work-related injuries and illnesses, will continue to be responsible for keeping such records, regardless of whether the injuries occur in a factory, in a home office, or elsewhere, as long as they are work-related and meet the [applicable] recordability criteria …”

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Company Owner In Contempt After Company Fails To Pay $2.2M OSHA Fine

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On January 3, 2020, the Eleventh Circuit Court of Appeals entered an order holding Great White Construction, Inc., Florida Roofing Experts, Inc. and owner Travis Slaughter in contempt for failing to pay $2,202,049 in OSHA penalties previously affirmed by the Court on October 2, 2017 and June 5, 2018.

The contempt order states the companies and Mr. Slaughter “shall be subject to coercive sanctions, including incarceration, and such other relief as this Court deems just and proper, for any noncompliance after 10 days after the date of this order.”

The January 3, 2020 judgment underscores the authority of federal courts to enforce their orders. Moreover, the judgment shows that companies ignore assessed OSHA penalties at their own peril.

January 3, 2020 Order

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

OSHA’s Top Ten Most Frequently Cited Standards – 2019

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On September 10, 2019, at the National Safety Council 2019 Congress and Expo, Patrick Kapust, Deputy Director of OSHA’s Directorate of Enforcement Programs, provided a preliminary list of OSHA’s top ten most frequently cited standards for fiscal year 2019 (Oct. 1, 2018 – September 30, 2019). Final data will be published on the OSHA website later this year.

The preliminary list:

  1.  Fall protection, construction (29 C.F.R. § 1926.501): 6,010 violations
  2.  Hazard communication standard, general industry (29 C.F.R. § 1910.1200): 3,671 violations
  3.  Scaffolding, general requirements, construction (29 C.F.R. § 1926.451): 2,813 violations
  4.  Control of hazardous energy (lockout/tagout), general industry (29 C.F.R. § 1910.147): 2,606 violations
  5.  Respiratory protection, general industry (29 C.F.R. § 1910.134): 2,450 violations
  6.  Ladders, construction (29 C.F.R. § 1926.1053): 2,345 violations
  7.  Powered industrial trucks, general industry (29 C.F.R. § 1910.178): 2,093 violations
  8.  Fall protection – training requirements (29 C.F.R. § 1926.503): 1,773 violations
  9.  Machinery and machine guarding, general requirements (29 C.F.R. § 1910.212): 1,743 violations
  10.  Eye and face protection (29 C.F.R. § 1910.102): 1,411 violations

Of course, OSHA citations do not always become a final order if challenged in settlement discussions or a notice of contest. Still, the preliminary list is instructive as to the focus of the agency in scheduling and conducting inspections.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Company President In Contempt After Company Fails to Pay $412,000 OSHA Fine

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On July 24, 2019, the Third Circuit Court of Appeals entered a judgment holding a construction company and its president in contempt for failing to pay $412,000 in OSHA penalties previously affirmed by the Court in a November 15, 2012 Decree.  The judgment says the president is personally liable for the portion of the fine not paid by the company.

The company president said he construed the November 12, 2012 Decree, which named him, to apply only in his capacity as an officer or employee of the company, “not to have required [him] individually to satisfy the Decree from personal assets.”

The Third Circuit rejected this position.  The Court said “[i]t is well established that when a corporate officer fails to act on behalf of the corporation to comply with a court order, the officer too may be held in contempt.” The Court also determined the sanction fairly holds the president accountable for “[his] failure, for more than four years, to make even a nominal effort to satisfy the November 15, 2012 Decree.”

The July 25, 2019 judgment underscores the authority of federal courts to enforce their orders. Moreover, the judgment shows that the time to challenge an OSHA fine, especially as to personal liability, is before a federal court renders a decree regarding the fine, not afterwards.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Beware of the Follow-Up OSHA Inspection

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

The OSHA penalty structure is specifically designed to punish employers more severely for uncorrected hazards discovered by the agency during a previous inspection. As of January 23, 2019, the maximum fine for a willful or repeat violation is $132,598; the maximum fine for failing to correct a hazard after the prescribed abatement date is $13,260 per day.

It is not surprising, therefore, that a follow-up OSHA inspection can yield significantly greater proposed penalties than an original inspection. Indeed, the largest citation ever issued by OSHA included $50.6 million in proposed fines against BP Products North America, Inc. for failing to abate hazards from a previous inspection.

To be sure, follow-up inspections have low priority for OSHA according to an agency publication.  A follow-up inspection can nevertheless be triggered by many circumstances, including (1) the nature of the employer’s operations, (2) the nature of hazards discovered during the initial inspection, (3) the failure of the employer to provide timely abatement documentation following the initial inspection, and (4) an event triggering another priority, such as an accident or complaint.

The road from an initial OSHA inspection to resolution of a citation can certainly be a difficult and costly one. For an employer which has heeded the lessons of the initial inspection, a follow-up inspection can be a mere annoyance. For an employer which has not heeded these lessons, however, a follow-up inspection can be devastating.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

Are You Following The Correct OSHA Standard?

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In February 2016, Bergelectric Corporation (“Bergelectric”)  was installing solar panels on the roof of a hangar at the Marine Corps Air Station in San Diego, California. The roof of the hangar was low-sloped and six feet or more above a lower level. Bergelectric employees were using warning lines and a safety monitor as prescribed by 29 C.F.R. § 1926.501(b)(10) of OSHA’s fall protection standard, which applies to employees performing roofing work on low-sloped roofs.

On February 24-25, 2016, OSHA conducted an inspection of the worksite. Based on the inspection, the agency issued a citation alleging a violation of 29 C.F.R. § 1926.501(b)(1) of OSHA’s fall protection standard, which requires employees working near the unprotected sides and edges of certain roofs to be protected by guardrail systems, safety net systems or personal fall arrest systems (“PFAS”).

Bergelectric contested the citation.  Although it did not dispute the absence of guardrail systems, safety net systems or PFAS, the company alleged its worked was governed by the safety standard for roofing work on low-sloped roofs, rather than the stricter standard applicable to unprotected sides and edges.  The Occupational Safety & Health Review Commission nevertheless upheld the citation, and Bergelectric filed a Petition for Review with the Ninth Circuit Court of Appeals.

In a June 6, 2019 Per Curiam Opinion, the Ninth Circuit denied Bergelectric’s Petition for Review.  In doing so, the court noted that the installation of solar panels did not fall within the definition of “roofing work” in 29 C.F.R. § 1926.500(b).  That regulation defines “roofing work” as “the hoisting, storage, application, and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck.”  The Court determined that the solar panels had “no connection to roofing and were, instead, simply the installation of a system that often happens to sit atop a roof.”

Without question, OSHA standards are voluminous and complex.  As the experience of Bergelectric demonstrates, an employer nevertheless interprets these standards at its own peril. Even a good faith effort to comply with safety standards can, if proved erroneous, result in an OSHA citation.

To minimize the risk of a citation, it is thus prudent for employers to evaluate whether their work may be subject to stricter OSHA standards than called for by current safety protocols.  If necessary, legal counsel should be consulted.  Such a review may avoid learning the hard way, as did Bergelectric, that the employer should have been following a stricter OSHA standard. Even if it is determined that the current safety protocols are correct, such an effort would help bolster the defense of an erroneously issued citation (which OSHA has been known to do) and show the commitment of the employer to compliance with OSHA directives.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

OSHA Amends Electronic Record Rules

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

As reported in a previous post on this blog, OSHA published on May 12, 2016 a final rule amending its record-keeping regulations to include new electronic submission mandates. The 2016 rule requires that establishments with 250 or more employees electronically submit injury and illness data they are already required to record on their onsite OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 301 (Injury and Illness Incident Report) and 300A (Summary of Work-Related Injuries and Illnesses). The 2016 rule further mandates that, for 66 classified industries,  an establishment with 20-249 employees electronically submit its OSHA Form 300A.

On January 24, 2019, OSHA published a new final rule which amends the previous 2016  rule effective February 25, 2019 in two respects.

First,  establishments with 250 or more employees are no longer required to electronically submit information from OSHA Forms 300 and 301. Such employers are still required to electronically submit information from OSHA Form 300A.

Second, each establishment required to electronically submit its OSHA Form 300A must include its Employer Identification Number with the submission.

As with the 2016 rule, the new rule does not alter an employer’s duty to maintain OSHA Forms 300, 301 and 300A on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

Collection of Calendar Year 2018 information from the OSHA Form 300A began on January 2, 2019. The deadline for electronic submissions is March 2, 2019.

OSHA Open During Partial Government Shutdown

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

Although many federal agencies have been affected by the partial government shutdown, the U.S. Department of Labor is not one of these agencies. The U.S. Department of Labor, including OSHA, has already been fully funded through September 30, 2019, as part of the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019, signed into law by President Trump on September 28, 2018.

Accordingly, OSHA remains open, and is conducting work site inspections, despite the partial government shutdown.

Fifth Circuit Expands OSHA’s Authority To Cite General Contractors

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In 1981, the Fifth Circuit Court of Appeals announced in Melerine v. Avondale Shipyards, Inc., that “OSHA regulations protect only an employer’s own employees.” For thirty-seven years, this decision shielded general contractors in the Fifth Circuit from OSHA citations as to hazards to which their own employees were not exposed. On November 26, 2018, however, the Court overturned this long-standing precedent.

In Acosta v. Hensel Phelps Construction Co., the Fifth Circuit addressed a citation arising from a cave-in hazard at a multi-employer construction worksite. In reliance upon its Multi-Employer Citation Policy, OSHA cited both the general contractor and a subcontractor for the hazards, even though only the subcontractor’s employees were exposed to the hazard.

An Administrative Law Judge (“ALJ”) of the Occupational Safety & Health Review Commission found that the general contractor met the requirements of a “controlling employer” as to the hazard under the Multi-Employer Citation Policy. Citing Melerine, the ALJ nevertheless vacated the citation against the general contractor because only employees of the subcontractor were exposed to the hazard.  The Secretary of Labor appealed.

Citing a “seismic shift” in administrative law since Melerine, a unanimous three-judge panel of the Fifth Circuit reversed. In doing so, the Court expressly held OSHA does have the authority under the Occupational Safety & Health Act (“OSH Act”) “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”

For general contractors in Texas, Louisiana and Mississippi, the impact of the reversal of a doctrine which had been around for thirty-seven years cannot be overstated. Responsibility for the safety of all workers on a multi-employer construction worksite is now a non-delegable duty of a general contractor which is the “controlling employer” on the site. The days are over when such a general contractor could simply look to its subcontractors to safeguard the safety of their own employees.

Furthermore, the risks of an OSHA inspection of a multi-employer worksite just increased for general contractors. These risks do not simply include hazards to which only employees of a subcontractor are exposed. The risks include prior inspections which can now be cited as evidence of willful violations.

If they have not done so already, therefore, general contractors in these states must now look to the Multi-Employer Citation Policy for guidance not only as to their responsibilities under the OSH Act, but also as to the consequences of having an ineffective safety compliance strategy for a multi-employer worksite or an inadequate plan for handling OSHA inspections at such a site.