Posted on October 03, 2013 by Epstein Becker & Green

Impact of the Government Shutdown on OSHA

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.

Posted on July 15, 2013 by Epstein Becker & Green

OSHA To Target Exits and Exit Routes

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.

Posted on June 01, 2011 by Epstein Becker & Green

OSHA Targets Manufacturers, Nursing Care Facilities, and Chemical Plants

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.