OSHA and Other Federal News

Gary Auman

Gary Auman (www.amfdayton.com) is a Partner in the law firm of Auman, Mahan, and Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969 and a law degree from The Ohio State University in 1976. He served in the U.S. Air Force from 1969–1973. His practice focuses on counseling and defending employers in safety and health matters. In 2002, Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He is a staunch advocate for safety in the workplace and is an aggressive advocate for employers who have been cited by OSHA, defending employers across the United States. He has worked with OSHA in its development of safety and health standards and frequently works with employers and OSHA to find workable solutions to OSHA enforcement actions. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@amfdayton.com.

September 1, 2023

New National Emphasis Program

OSHA issued a National Emphasis Program (NEP) on fall protection, effective May 1, 2023. In the 90 days after May 1, and prior to implementation, OSHA area offices were to draft compliance information to give employers during or following an inspection being made under the NEP. The NEP gives OSHA Compliance Officers authority to enter and inspect
any site/location where they observe any employee working more than 6 feet above the level below them, even if the employee is in compliance with fall protection rules.
Once a Compliance Officer has access to the site, however, they may cite the employer
for any OSHA violations observed.

Instance by Instance Citations

On March 27, 2023, OSHA began applying a new policy for inspections, known as
the “Instance by Instance” citation procedure. Under this procedure, OSHA Compliance
Officers have authority to issue multiple citations on any inspection site where they observe employers are repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements. Following a catastrophic injury—i.e., one involving hospitalization for treatment of at least one employee, a fatality, the loss of an eye, or the amputation of any extremity—if a Compliance Officer is inspecting a site and they find that employees have been exposed to life-threatening hazards, they may issue individual citations for each employee exposed to the hazard(s). Life-threatening hazards include fall protection hazards, ladder safety hazards, excavation hazards, machine guarding hazards, lockout tag-out hazards, etc. An instance-by-instance set of citations also may be issued if a Compliance Officer observes employees exposed to such hazards and determines that the employer had received a willful, repeat, or failure to abate
violation for any OSHA violation during the preceding 5 years; or the employer had at any time failed to report a fatality, in-patient hospitalization, amputation, or loss of an eye
pursuant to the requirements of 29 CFR 1904.39.

In Other News…

Additional developments include the following.

  • OSHA is examining expanding current enforcement of combustible dust hazards to the manufacture of trusses and the secondary cutting or sawing of precut lumber.
  • A recent decision by the U.S. Supreme Court in the Glacier Northwest, Inc. v. International Brotherhood of Teamsters found the Teamsters liable for damages caused to the employer while members of the bargaining unit were striking. The pro-management decision has been decried by organized labor because it removes one of the strategies used to push employers into agreeing to terms to settle strikes.
  • The Department of Labor has joined with the Federal Trade Commission in efforts to prohibit noncompete agreements or such clauses in contracts/ hiring documents. Counsel is not aware of a final rule being issued.
  • The Equal Employment Opportunity Commission held hearings on the application of artificial intelligence in employment decision-making by company management.
  • A recent National Labor Relations Board (NLRB) decision revises the framework for determining independent contractor status under the National Labor Relations Act, overruling a 2019 decision that emphasized entrepreneurial opportunity as a key factor when evaluating a worker’s independence to pursue economic gain. The NLRB returned to a traditional, common-law test that requires consideration of several factors, not placing greater weight on any one factor. The independent business analysis considers whether the worker has a significant entrepreneurial opportunity, has a realistic ability to work for other companies, has proprietary or ownership interest in their work, and has control over important business decisions such as the scheduling of the contractor’s performance; hiring, selection, and assignment of employees; purchase and use of equipment; and commitment of capital.

NIA provides the information in this article as an educational resource to promote a safer industry. While the information provided is based on the NIA’s and the author’s best judgment and the best information available at the time the article was prepared, NIA encourages all readers to consult with their safety experts and legal counsel for their unique business circumstances or when making changes to their safety programs.

DOL Announces Proposed Changes to Clarify Regulations on Authorized Employee Representation during Workplace Inspections

Seeks public, stakeholder comments on proposed changes

The U.S. DOL recently announced a notice of proposed rulemaking to revise regulations regarding who can be authorized by employees to act as their representative to accompany the department’s OSHA compliance officers during physical workplace inspections.
Specifically, the proposed rule clarifies that employees may authorize an employee, or they may authorize a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.
The proposed changes also clarify that third-party representatives are not limited to industrial hygienists or safety engineers, two examples included in the existing regulation. Third-party representatives may be reasonably necessary because they have skills, knowledge or experience that may help inform the compliance officer’s inspection. This information may include experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.
In addition to the proposed revisions, OSHA is also seeking public comment by Oct. 30, 2023, on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection.
The OSH Act gives the employer and employees the right to have a representative authorized by them accompany OSHA officials during a workplace inspection to aid the investigation. Employee participation and representation is critical to an inspector’s ability to complete a thorough and effective workplace investigation and helps OSHA gather information about the job site’s conditions and hazards.
The proposed revisions do not change existing regulations that give OSHA compliance officers the authority to determine if an individual is authorized by employees and to prevent someone from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection, or to limit participation to protect employer trade secrets.
Submit comments at Regulations.gov, the federal eRulemaking portal by Oct. 30, 2023. Include Docket Number OSHA-2023-0008 on all submissions. Read the full Federal Register notice at https://tinyurl.com/2p9h2y95.