Carla J. Gunnin with Jackson | Lewis (Atlanta)

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2. Section 5 of the OSH Act
Each employer-
shall furnish to each of his employees employment and a
place of employment which are free from recognized hazards
that are causing or likely to cause death or serious physical
harm to his employees; (known as the general duty clause or
Section 5(a)(1))
shall comply with occupational safety and health standards
promulgated under this Act. (all of the promulgated
regulations, sometimes referred to as Section 5(a)(2)
violations)

3. Otherwise known as OSHA’s favorite new “regulation”
Under Section 5(a)(1) of the Occupational Safety and
Health Act, Employers must protect employees from
recognized hazards by implementing feasible abatement
methods
Recognized Hazards
Feasible Abatement Methods
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4. Recognized hazards
o Recognized by the Employer or
o Recognized by the Industry, e.g. ANSI or ASME standards
Feasible Abatement Methods
o Government must prove as part of their case
o Both technologically and economically feasible
o Corrective action taken by Employer after Citation can be used
as evidence of a Feasible Abatement Method
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5. What Causes an Inspection to Occur?
o Strategic Targeting Inspection (SST)
o Complaints
o National or Regional Emphasis Programs
o Referral – Media, Other agencies, Plain View
o Fatality
o Required Reporting

6. 1. 1926.501 - Duty to have fall protection.
2. 1910.1200 - Hazard Communication
3. 1926.451 - Scaffolding
4. 1910.134 – Respiratory Protection
5. 1910.147 – Lockout/Tagout
6. 1910.178 – Powered industrial trucks
7. 1910.305 – Electrical wiring
8. 1926.1053 - Ladders
9. 1910.212 – Machine Guarding
10. 1910.303 - Electrical Systems

7. 1.1926.501 - Fall Protection
2.1910.1200 - Hazard Communication
3.1926.451 - Scaffolding
4.1910.134 - Respiratory Protection
5.1910.178 - Powered Industrial Trucks
6.1910.147 - Lockout/Tagout
7.1926.1053 - Ladders
8.1910.305 - Electrical, Wiring Methods
9.1910.212 - Machine Guarding
10.1910.303 - Electrical, General Requirements

8. Look on OSHA website for the most frequently
cited standards for your industry
How?
Go to: OSHA.gov
o Data and Statistics Tab
If you don’t know you’re NAICS Code, you can
look it up from there

9. Lead
Silica
Falls in Construction
Landscaping and Horticultural Services
Electrical Hazards
Ship/Boat Building and Repair
Noise Hazards
Poultry
Powered Industrial Truck

10. Effective January 1, 2015…OK, not so new, but,
very important!
2 key changes
o Updated list of industries partially exempted from the
rule – your Company may no longer be exempt from
OSHA recordkeeping!
o Expansion of list of severe work-related injuries and
illnesses that must be reported to OSHA
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11. About 25 Industries Added to Establishments that Are
Required to Keep OSHA 300 Records
Make sure you know whether you are required to keep
OSHA logs under the new requirements
https://www.osha.gov/recordkeeping2014/reporting_indu
stries.html
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12. 3118 Bakeries and tortilla manufacturing
4411 Automobile dealers
4413 Automotive parts, accessories, and tire stores
4441 Building material and supplies dealers
4452 Specialty food stores
4453 Beer, wine, and liquor stores
4539 Other miscellaneous store retailers
4543 Direct selling establishments

13. 5311 Lessors of real estate
5313 Activities related to real estate
5322 Consumer goods rental
5324 Commercial and industrial machinery and
equipment rental and leasing
5419 Other professional, scientific, and technical
services
5612 Facilities support services
5617 Services to buildings and dwellings

14. 5619 Other support services
6219 Other ambulatory health care services
6241 Individual and family services
6242 Community food and housing, and emergency and
other relief services
7111 Performing arts companies
7113 Promoters of performing arts, sports, and similar
events
7121 Museums, historical sites, and similar institutions

15. 7139 Other amusement and recreation industries
7223 Special food services
8129 Other personal services
BOTTOM LINE – KNOW YOUR NAICS Code!

16. • Effective January 1, 2015
• All work-related fatalities within 8 hours
• All work-related
oInpatient hospitalizations of one or more people
o Amputations
o Eye loss
oThese must be reported within 24 hours
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17. Previously 2 choices – expanded to 3
o Call OSHA’s free and confidential number – 1-800-321-OSHA
(6742)
Call closest OSHA area office
Use the new online form – not suggested
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18. • On-Site Inspection or Rapid Response Investigation
• Category One – Inspected
• All fatalities and reports of 2 or more in-patient
hospitalizations
• Any injury involving a worker under 18
• Known history of multiple injuries (same or similar events
in previous 12 months)
• Repeat offenders (history of egregious,
willful, failure-to-abate, or repeated
citations)
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19. • Category Two
• At the discretion of the Area Director
• Certain factors: employees still exposed to hazards, safety
program failure (LOTO, PSM), other agency referral, employer
has prior inspection history
• Category Three – Rapid Response Investigation
• Conduct an incident investigation
• Document findings and send corrective actions
• Post a copy of the letter where employees can
readily review it
• Fax or email a copy of the signed
Certificate of Posting
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20. Other than Serious – up to $7000
Serious – up to $7000
Repeat – up to $70,000
Willful – up to $70,000
Failure to Abate - $7000 per day
Criminal Sanction - $250k - $500K

21. 80% Increase by August 2016
o Maximum Serious $12,000
o Maximum Willful $120,000
400% Increase in Failure to Report
o Was $1000
o Now $7000
o This will be bigger in August

22. “Improve Tracking of Workplace Injuries and Illnesses” was
published in the Federal Register on November 8, 2013
Early in 2010 this rule was presented as “Modernization of
OSHA's Injury and Illness Data Collection Process”
• Public comments were submitted in response to a request for
information (Docket No. OSHA-2010-0024)
• Two stake holder meetings held in May, June 2010
Public meetings held on January 9-10, 2014
Supplemental Notice issued August 14, 2014
Potential release Spring 2016
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23. OSHA proposes three new requirements for the
electronic submission of injury and illness information to
OSHA that the agency already requires employers to
keep
Intention is to replace the current OSHA Data Initiative
(ODI) under §1904.41
OSHA will make the information publicly available on its
website and create a searchable online database
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24. If an establishment has at least 250 employees
at any time in the previous calendar year they
will be required to:
• Electronically submit to OSHA on a quarterly basis the
information from OSHA Forms 300 (Log) and 301 (Incident
Report)
• Electronically submit to OSHA on an annual basis the
information from the OSHA Form 300A (Summary)
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25. All information contained on each form will be
required to be submitted, including employee
total hours worked from the 300A
• OSHA alleges it will redact employee names and other
potentially personally identifiable information, and
information protected from release under FOIA
• OSHA has not provided detailed information regarding
what the agency considers personally identifiable
information
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26. Covered establishments:
• If an establishment has at least 20 employees at any time in the
previous calendar year
AND
• Are in a certain designated industry (2009 DART rate in the BLS
Survey of Occupational Injuries and Illnesses of at least 2.0.)
– If the rule goes final, OSHA will use the most current BLS DART rates
to designate high hazard industries
o These establishments will be required to electronically
submit to OSHA on an annual basis the information
provided on OSHA Form 300A
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27. OSHA issued a supplemental notice of proposed
rulemaking on August 14, 2014
OSHA considering amending the proposed rule to
include three new provisions
Alleged effort to address concerns raised during the
public meetings and written comments
Supplemental notice does not provide any proposed
regulatory text
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28. Require employers to inform employees of their right
to report injuries and illnesses
• Possibly in the form of a poster
Require injury and illness reporting requirements
established by employer be reasonable and not
unduly burdensome
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29. Prohibit employers from taking adverse action
against employees for reporting injuries and illnesses
• Termination, reduction in pay and reassignment to less desirable
position are examples of adverse action
OSHA defines “adverse action” as any other action that
might dissuade a reasonable employee from reporting
an injury
The supplemental notice suggests that post-accident
drug testing could be considered adverse action and
while not directly mentioned safety incentive programs
are likely to be considered adverse action as well
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30. New Rule Finalized in March
Rule is being challenged in multiple U.S. Circuit Courts
of Appeal
o Business
o Labor Unions
Significantly lowered the PEL
Will the Rule be stayed?

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