OSHA Warns About Employer Cover-Ups
Labor Solicitor Eugene Scalia warns employers that the Occupational Safety & Health Administration (OSHA) will aggressively pursue enforcement actions where employers hide serious violations from OSHA inspectors. The warning follows the issuance of a citation against a West Virginia metal manufacturer. The citation proposed fines of $288,000 and included 23 alleged safety and health violations, including five willful violations. The high penalty was apparently justified by OSHA because the company was aware of the hazards and attempted to hide them from the Agency during the inspection.

This recent citation and the warning from the Labor Solicitor should cause employers to consider carefully how to respond to OSHA investigations. While most employers certainly know that complete honesty is required during these investigations, complete honesty does not require employers to voluntarily report every hazard. Every employer should develop a formal plan for responding to OSHA investigations. Such a response requires a full understanding by the employer of its rights and obligations during an OSHA investigation. Such a response also requires advance action by the employer so that responsible personnel are trained and prepared for the investigation. Ross & Hardies partner Jerry Bowman has prepared an outline on how to respond to an OSHA investigation and has presented numerous seminars on the subject. If you would like a copy of this outline, please contact Jerry Bowman.

Permit Required Confined Space Standard and Temporary Enclosures
OSHA recently published a technical information bulletin, Exposure to Hazards Associated with Temporary Enclosures. Publication of this bulletin followed a request from the Chemical Safety & Hazard Investigation Board from more than three years ago following a 1998 fatality. In the bulletin, OSHA warns that tarps and other temporary enclosures "have the potential to be" covered by OSHA's confined space rule. The bulletin focuses primarily on temporary enclosures with a potential for a hazardous atmosphere.

Many employers typically do not consider temporary enclosures as potential permit-required confined spaces. The OSHA technical bulletin referred to above should be a warning to employers to evaluate all enclosures pursuant to the confined space rule.

Guilty Plea to Criminal Violation of Occupational Safety & Health Act
A Texas iron foundry recently pleaded guilty to a criminal violation of the Occupational Safety & Health Act arising out of the death of one of its employees. Apparently the company's employee entered a machine pit where belts, pulleys and conveyors were moving and not properly guarded. While in the pit, the employee was caught in an unguarded belt and was pulled into the belt and pulley system. The employee died as a result of his injuries. The Texas company pleaded guilty to the criminal violation and was sentenced to pay a $250,000 fine and placed on probation for one year. During the probationary period, OSHA will inspect the company four times.

Prosecutions for criminal violations of the Occupational Safety & Health Act (which generally require a willful violation and an employee fatality) are fairly rare. Nevertheless, the recent prosecution and plea agreement discussed above demonstrates OSHA's willingness to seek criminal sanctions under certain circumstances. An employer which experiences an employee fatality must take the resulting OSHA investigation and the potential liability very seriously. Such employers should retain competent counsel in order to minimize the risk of criminal prosecution of either the employer company or even individual employer supervisors.

Walking And Working Surface Rule To Be Proposed
According to OSHA's regulatory agenda, OSHA will publish a notice of proposed rulemaking in December of this year regarding revisions to its Walking and Working Surface Rule (29 CFR 1910 Subparts D and I). Little information is currently available regarding the extent of revisions to the walking and working surface rule. However, some guidance might be found in the recently revised ANSI standard for floor and wall openings, stairs and railing systems (ANSI A1264.1). This ANSI standard was revised in 1995 and revised again last month.

Hearing Conservation For Construction Workers
On August 5, 2002, OSHA published a proposed rulemaking in the Federal Register. The proposed rule would require a hearing conservation program for construction workers, similar to the program required in general industry. Specifically, OSHA is seeking comments on whether the general industry requirements for hearing programs should be applied to construction. Because of the inherent differences between general industry and construction, some changes in the hearing program requirements will undoubtedly be necessary. Written comments must be submitted to OSHA by November 4, 2002.

Injury And Illness Prevention Rule
OSHA is continuing to work on an injury and illness prevention rule. Despite this work, the Agency has been largely silent regarding the likely scope of such a rule and what obligations would be placed upon employers.

Employers may recall previous efforts by the Clinton administration to promulgate a very broad safety and health program rule. (See the article authored by Jerry Bowman as a Legal Backgrounder, published by the Washington Legal Foundation and dated April 30, 1999 (Vol. 14, No. 16), which discussed some of the pitfalls associated with the Clinton proposal.) That proposal would have required employers to develop very broad and formal safety and health programs, including full-blown hazard assessments for entire operations. It is unclear how the proposal on which OSHA is currently working differs from the prior Clinton administration safety and health program rule.

If anyone would like a copy of the Legal Backgrounder article regarding the Clinton era safety and health program rule, contact Ross & Hardies partner Jerry Bowman.

Ross & Hardies will continue to update these and other OSHA developments that may be of concern to our clients. If anyone has any questions regarding the subject matter, please contact Jerome K Bowman (312.750.2783) or your regular contact at Ross & Hardies.

This OSHA Legal Update is published by Ross & Hardies to provide a summary of significant developments to our clients and friends. It is intended to be informational and does not constitute legal advice regarding any specific situation.