OSHA Quarterly Newsletter - November 2015


Click here to view the November 2015 OSHA Newsletter PDF.

OSHA Joint Employer Status for Franchisors Post Browning-Ferris

On August 27, 2015, the National Labor Relations Board issued its decision in Browning-Ferris Industries of California, Inc. and established a new, broad standard for determining when two entities are "joint employers" under the National Labor Relations Act. 362 NLRB 186 (2015). Under Browning-Ferris, an entity may be a joint employer of another entity's workers based on reserved or indirect control over those workers' terms of employment, even if that reserved or indirect control is attenuated or never exercised at all.
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General Duty Clause Enforcement: "No PEL, No Problem"

Consistent with previous pronouncements from OSHA, a new compliance directive for OSHA inspectors instructs them to use the General Duty clause when safety data sheets warn of chemical hazards. When a hazardous substance lacks a Permissible Exposure Limit, OSHA informs its inspectors to refer to safety data sheets to investigate whether there are serious chemical exposure hazards in the workplace. Information from those sheets can help determine if the four required elements for a general duty clause violation are present. This directive instructs OSHA inspectors on how to enforce the updated hazard communication standard.
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OSHA Whistleblowers May Now Use Alternative Dispute Resolution

After piloting an Alternative Dispute Resolution process in two regions from 2012-2013, OSHA has determined that an "early resolution" process effectively streamlines whistleblower disputes and encourages early settlement between the parties.
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Coming Soon: Increased OSHA Enforcement Regarding Workplace Violence

Over the past year, OSHA has increased its focus on the topical issue of workplace violence, including an April 2015 guidance regarding preventing violence in healthcare and social services.

In early 2016, OSHA intends to issue a new directive to train OSHA inspectors how to investigate workplace violence when inspectors visit a site.
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OSHA's Interpretation Regarding Laundering of Fire Retarding Clothing

On June 1, 2015, OSHA released an Interpretation Letter in response to the following question: "who is responsible for the laundering of fire retarding clothing that is provided to employees?"

According to the agency, OSHA regulations do not prohibit employers from allowing employees to launder their fire retarding clothing at home. However, employers must do more than "simply instruct employees to follow manufacturers' instructions."
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In Other News

Employers should also be aware of these other recent developments:

  • The budget bill, recently signed into law, raised the OSHA fines for violations for the first time in twenty-five years. OSHA will still go through a formal rule-making process to determine the exact fine increase, but if the full increase is implemented, the willful and repeat violation fine amounts would increase from $70,000 to $125,000. The serious violation fine amounts could increase from $7,000 to $12,500. As a result of the new budget bill, on January 15 of every year the head of each agency shall adjust civil monetary penalties, so increased fines could become an annual routine. OSHA has until mid-2016 to determine what the fine increase will be, so employers have time to prepare.
  • OSHA has updated its National Emphasis Program (NEP) on Amputations. One notable revision is that the list of industries targeted for inspections has been expanded and now includes general industry workplaces where any machinery likely to cause amputations is present. Additionally, OSHA's inspections of facilities will now include an evaluation of employee exposures under the range of normal business circumstances, including regular operation, upset conditions, scheduled maintenance, and locking or tagging out of equipment.
  • OSHA has also released a guidance memorandum for inspections conducted in inpatient healthcare settings, including nursing and residential care facilities and hospitals. Inspections of these facilities will focus on five hazards: musculoskeletal disorders (ergonomics), workplace violence, bloodborne pathogens, tuberculosis, and slips, trips and falls. Inpatient healthcare employers should review the guidance memorandum and ensure they are prepared for an OSHA inspection.
  • A new Field Operations Manual has been released to guide OSHA inspectors through the inspection and abatement process. The manual includes numerous revisions to OSHA policies and guidance that were not reflected in the manual's last edition. The manual is useful for employers to gain insight on steps of the process, including inspections, citations, penalties, abatement, and appeals.

If you have any questions, please visit the Haynes and Boone Occupational Safety and Health Act (OSHA) and Workplace Disasters page of our website or contact one of the lawyers listed in this newsletter.

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