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OSHA Developments (Monday, December 23, 2013)

Changes to Strategic Partnership Program

Since 2005, employers could enter into strategic partnerships with the Occupational Safety and Health Administration (“OSHA”). A new directive revises the OSHA Strategic Partnership Program for Worker Safety and Health (OSPP) and describes agency procedures for implementing this program. For the most part, the changes remove some incentives for employers to enter into such partnerships.

The OSPP is a federal initiative that seeks to reduce occupational fatalities, injuries, and illnesses as well as to improve worker protections by engaging employers, employer groups, workers, and labor organizations, to enter into cooperative relationships with OSHA to carry out the purposes of the OSH Act. The program was created by OSHA in November 1998.

The new directive cancels the earlier OSHA Instruction CSP 03-02-002, OSHA Strategic Partnership Program for Worker Safety and Health, effective February 10, 2005.

An OSHA Strategic Partnership (“OSP”) is a voluntary relationship between OSHA and employers, workers, unions or other interested stakeholders to encourage, assist, and recognize efforts to eliminate serious hazards. OSPs are available to all private sector industries and government agencies where OSHA has jurisdiction. OSPs may be designed to address all hazards at a partner’s worksite or one or more discrete hazards of particular concern. OSPs are formalized through written agreements that last for a specified period of time.

OSP agreements signed or renewed after July 27, 2012, may no longer contain references to “enforcement incentives.” New or renewed OSP agreements also may not include deferrals and deletions from routine programmed inspections outside the scope of those provided to any employer who receives an enforcement inspection.

OSHA also removed language allowing for an additional 10% good faith penalty reduction for OSP employers that have established safety and health management systems (SHMS).

OSHA also has added language on SHMS and worker involvement. These are two new required elements of all OSP agreements. With the addition of these two elements, the number of required core elements for all OSP agreements has increased from eleven to thirteen.

Employers who partner with OSHA in OSPs developed or renewed after July 27, 2012, will remain eligible for any and all incentives available to any other employer who is inspected by OSHA. These incentives are detailed in the most current version of OSHA’s Site-Specific Targeting (SST) Directive as well as in OSHA’s Field Operations Manual.

  1. For construction worksites, OSHA’s “focused inspection” policy remains in effect.
  2. For non-construction worksites, a national OSP agreement that includes worker participation may include an incentive for limited scope inspections where it can be clearly demonstrated to result in a more effective partnership. Such an OSP must be approved by the Assistant Secretary in advance of the OSP agreement’s development.
  3. OSPs established before July 27, 2012, may maintain all their existing enforcement incentives until the expiration/renewal date of the OSP.
  4. OSPs established after July 27, 2012, and any OSPs renewing their agreements must meet the criteria in this Instruction at the time of approval or renewal, respectively.

OSHA believes that workers can bring valuable skills and perspective to the partnership and worker involvement is encouraged. Worker involvement in the day-to-day implementation of worksite SHMS and other OSP activities is required.

For an OSP that includes the participation of unionized worksites, all affected unions must be supportive for the partnership to go forward. Union representatives at either the local or international level must be signatories to the OSP agreement or, alternatively, must indicate their willingness for the partnership to proceed but waive their opportunity to be signatory.

For non-union worksites, evidence of worker involvement is required.
  1. Worker involvement may include, but is not limited to:
    1. participating on safety and health committees, joint labor-management committees, and other advisory or specific purpose committees, if otherwise lawful and appropriate;
    2. participating in site inspections, safety and health audits, job hazard analyses, and other types of hazard identification;
    3. developing and using a system for reporting hazards;
    4. developing and revising the site's safety and health rules and safe work practices;
    5. participating on workplace teams charged with identifying root causes of accidents, incidents, or breakdowns;
    6. participating in the development and implementation of controls to eliminate or reduce hazard exposure;
    7. presenting OSP information at safety and health meetings;
    8. delivering training to current and newly-hired workers;
    9. participating in SHMS reviews; and
    10. participating in OSP conference calls/meetings.

Proposed Recordkeeping Changes

OSHA is proposing significant changes in how it collects and makes public available injury and illness information, according to a proposed rule published in the Nov. 8 Federal Register (78 Fed. Reg. 67,254).

Current regulations only require employers to notify OSHA of fatalities or incidents involving the hospitalization of three or more employees. Employers must also annually post their OSHA Form 300 log. Now, OSHA typically only reviews an employer’s written Form 300 log as part of an inspection. Under the annual OSHA Data Initiative, OSHA requires about 100,000 employers in high-hazard industries to submit, on electronic or printed forms, summaries of their Form 300 logs.

OSHA’s proposed regulation adds new reporting obligations:

  1. Employers with 250 or more employees, including full and part time, seasonal and temporary workers, must electronically submit all 300 and 301 logs to OSHA on a quarterly basis and submit annual 300A summaries by March 2 each year;
  2. Employers with 20 or more employees in more than 50 designated industries (including construction, manufacturing, gaming, spectator sports department stores, utilities, nursing care, and dry cleaning, among others) must electronically submit any requested Part 1904 records upon demand by OSHA, within an unspecified time for response; and
  3. That all employers who receive a notification from OSHA submit information from their injury and illness records electronically to OSHA, for the time period and at the intervals specified by the notification.

Companies with 20 or more workers in high-hazard industries, about 440,000 workplaces, would have to submit their OSHA 300 log data electronically every year. That information would also be posted on OSHA’s website. OSHA intends to make all of this injury and illness data available through a searchable database.

Employers have until February 6, 2014, to submit written communication on the proposed rule.

Hazard Communication

On December 1, 2013, employers must begin complying with OSHA’s new Hazard Communication (HazCom) standard.

Material Safety Data Sheets (MSDSs) will now be known as Safety Data Sheets (SDSs). SDSs must meet a specified 16-section format.

Chemical manufacturers must follow a single procedure for classifying health and physical hazards of chemicals. This procedure is now known as a “hazard classification.” Under the old standard, chemical manufacturers had to perform a hazard determination of the chemicals they manufactured. They could follow any number of procedures for conducting a hazard determination as long as they accurately determined the hazards.

The new standard states exactly what information must be on a label. This information must be conveyed through pictograms, signal words, hazard statements, and precautionary statements.

December 1, 2013, was the deadline by which employers had to train employees on the new label elements and SDS format.

Employers must comply with all new HazCom standard requirements by June 1, 2015. June 1, 2016, is the deadline for employers to update workplace labeling and hazard communication programs and to provide employee training for any new physical or health hazards identified by a hazard classification.

Web Tools

OSHA has launched a website tool (http://www.osha.gov/dsg/annotated-pels/index.html) that provides a side-by-side comparison of OSHA Permissible Exposure Limits (PELs) with exposure recommendations from three other sources.

A second online resource can assist employers in replacing hazardous chemicals with less hazardous materials. (http://www.osha.gov/dsg/safer_chemicals/index.html)

Whistleblowers may now register online complaints. The complaint form is found at https://www.osha.gov/whistleblower/WBComplaint.html. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, was quoted as stating: “Whistleblower laws protect not only workers, but also the public at large, and now workers will have an additional avenue available to file a complaint with OSHA.” Whistleblowers may still file complaints by calling an OSHA office or in written form.

· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com