Posts Tagged ‘OSHA regulations’

Does your business employ “temporary workers?” According to the American Staffing Association, there are almost 3 million temporary workers in the nation’s workforce today – many doing hazardous construction or manufacturing work. Recognizing the growth in the use of temporary workers, and having received reports of injuries to such workers, the Occupational Safety and Health Administration (OSHA) has embarked on a national initiative “to protect temporary workers in order to halt the rising toll of fatal injuries.”

In April 2013, OSHA started its “Temporary Workers Initiative” (TWI) in order to help prevent work-related injuries resulting from the use of temporary employees. The stated purpose of the TWI was to highlight employers’ responsibilities to ensure these workers are protected against workplace hazards. OSHA expressed concerns that (1) temporary workers are inadequately trained to perform tasks that may present significant safety dangers and (2) temporary workers are particularly vulnerable to pressure by host employers to avoid reporting of work-related injuries. As part of its initiative, OSHA issued its Injury and Illness Recordkeeping Requirements applicable to temp workers. These state that if the “host employer” using the temporary worker maintains day-to-day control over the worker, the host employer is responsible for recording injuries. But the staffing agency should maintain “frequent communication” with the host employer to make sure that any injury is properly reported.

OSHA’s Recommended Practices for Protecting Temporary Workers

In August of this year, OSHA issued its Recommended Practices for Protecting Temporary Workers. It applies to “temporary workers” who are supplied by a staffing agency to a host company, and are referred to as “temporary” even if their period of assignment with the host is lengthy or indefinite. The “Recommended Practices” are designed to ensure that such workers receive the same level of training and protection that existing workers receive. These temporary workers are supplied to a host employer by the staffing agency. Both the staffing agency and the host employer have responsibilities to ensure that the temporary workers are properly protected. Both are considered by OSHA to be that employee’s “joint employer” for the purpose of meeting OSHA requirements. The extent of the employer’s obligations varies depending on the job done by the temp and the workplace environment. OSHA’s “recommended practices” for protecting temporary workers are the following:


  1. Worksite evaluation. Before any temporary worker starts work for a host employer, both the staffing agency and the host employer should evaluate the latter’s worksite to which a worker might be sent, the anticipated job duties and the potential hazards and training the employee will need to safely use these facilities.
  2. Training staffing agency personnel. Noting that many staffing agencies do not have “dedicated safety professionals,” OSHA recommends that temporary agency staff should be trained to recognize safety and health hazards. Agency staff should be trained regarding the equipment workers may use and how to use it safely.
  3. Review agency and host training and safety records. The staffing agency should check to make sure the host employer meets the agency’s safety standards and training levels, and vice versa. The employer and agency should exchange each other’s safety records and review them to ensure compliance with safety standards. OSHA noted with approval that some employers will only hire temporary workers from agencies that adequately train the workers in safety.
  4. Assign and define responsibilities regarding safety. The staffing agency and host employer should assign occupational safety responsibilities and define the scope of an assigned employee’s work, and tasks to be performed, in a written contract. When possible, the contract should specify whether the agency or the host employer is responsible for safety and health issues.
  5. Injury and illness tracking and exchange of information. The employer and staffing agency should notify each other when injuries occur so both can be aware of the nature of the injuries and be better positioned to avoid such injuries in the future. OSHA requires that injury and illness records be maintained by the employer who is providing the day-to-day supervision of the employee. While the supervising employer is required to inform employees how to report work-related injuries and illnesses, both it and the staffing agency should inform the employee of this process. OSHA requires that injury/illness records be kept by the employer providing daily supervision of the temporary employee, usually the host.
  6. Conduct safety and health training and new project orientation. OSHA requires site-and task-specific safety training. Staffing agencies should provide general safety training applicable to different occupational settings. Host employers should provide temporary workers with safety training that “is identical or equivalent to that provided to the host employers’ own employees performing the same or similar task.” Temporary employees should be told how to report an injury and get treatment.
  7. Both staffing agencies and employers should have an injury and illness prevention program. Companies that do construction work must initiate and maintain accident prevention programs, provide for a competent person to conduct frequent and regular inspections, and instruct employees how to avoid unsafe conditions. 29 C.F.R. 1926.20, et. seq.   Employers should identify and track performance measures essential to evaluating the program’s effectiveness. Employers should conduct thorough investigations of injuries and illnesses.
  8. The staffing agency should maintain contact with temporary workers assigned to a host. The staffing agency (a) has the duty to inquire and, if possible, verify that the host employer has fulfilled its responsibilities for a safe workplace (b) should have a written procedure for workers to report any hazards and instances when the workers’ tasks were altered from those agreed upon with the agency. Both staffing agency and host employer should inform the workers how to report hazards and changes to the job tasks.

How Businesses Should Respond to OSHA’s Recommended Practices

The new OSHA-recommended practices make it clear that staffing agencies and host employers are jointly responsible for providing and maintaining safe working conditions for temporary employees. Both should be aware of these recommendations and ensure that they are followed to protect the safety of temporary workers employed on their premises, and to avoid complaints of alleged violations. The recommended practices will require more intensive assessment of safety-protective steps by the agency and host employer, along with follow up by each to ensure that these practices are followed in the work place. Every use of a temporary worker should be subject to a written contract between the agency and the host. The contract should define the training and safety responsibilities of each. Before temporary workers commence job duties, host employers should ensure that they are properly trained in the safety aspects of the jobs for which they are assigned and the places in which they will be performing them. Records should be kept of this training.

While aspects of this initiative may seem onerous, or unnecessary, there are many more problems that arise if the recommendations are ignored. In that event, such problems could impact workers’ health and lead to legal complications. OSHA’s initiative will give plaintiffs’ lawyers more ammunition to be used regarding complaints of workplace safety. It may lead to more complaints by would-be “whistleblowers” that their employments were adversely affected by negative reactions to reports regarding the adequacy of safety measures and/or safety related training. Since OSHA prohibits employers from retaliating against employees for exercising rights under the Act, temporary employees who make reports regarding safety should not be treated adversely as a result of the report. Staffing agencies and host employers should give safety training and compliance heightened focus as a result of OSHA’s initiative, for all these reasons.

This article is authored by attorney David A. Flores and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.



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A Canonsburg, Pennsylvania based painting contractor faces nearly half a million dollars in proposed OSHA penalties for alleged safety violations at three of its projects.  The large citation includes 38 alleged violations, including 14 willful and 11 repeat violations at worksites in Slatington, Harrisburg, and Slatedale, Pennsylvania.

The alleged willful violations include failing to properly protect workers from lead exposure and failing to provide fall protection.  The repeat violations relate to employee exposure to lead above the permissible exposure level, a lack of warning signs posted in lead work areas, failure to ensure workers showered at the end of each shift, and failure to provide medical evaluations and fit tests for respirator users.

Additional alleged violations include:

  1. Failure to notify employees of the results of lead monitoring;
  2. Failure to provide employees with initial medical surveillance for lead;
  3. Failure to provide periodic blood tests for employees exposed to lead;
  4. Allowing workers to have or consume food in an area where lead exposure was above the permissible level;
  5. Failing to notify employees in writing of blood lead test results within five days;
  6. A lack of guarding on electrical wiring to prevent accidental contact; and
  7. Failure to ensure that workers wore respirators while blasting with glass media or when exposed to lead in excess of permissible limits.


The cited company has been under OSHA’s scrutiny for the past several years, having been inspected five times in the past five years with four of the inspections resulting in citations for serious violations.  As a result of the painting contractor’s alleged refusal to correct hazards, it has been placed on OSHA’s Severe Violator Enforcement Program, which requires targeted follow-up inspections to ensure compliance with OSHA regulations.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.


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Why Employers Might Want to Contest “Willful” OSHA Citations

A recent federal court decision in a case referred to as Dayton Tire v. Secretary of Labor, gives employers an even stronger basis from which to contest “Willful” OSHA citations.   Specifically, the recent decision holds that Willful OSHA violations require more than a showing of “mere negligence.”  What this means is that as long as an employer is acting in good faith to comply with OSHA regulations, even if OSHA later determines that the employer’s actions fell short of what was required under OSHA regulations, the employer should not be cited for a Willful violation.

By way of background, OSHA violations are classified as:  Willful, Repeat, Serious, or Other than Serious.  Willful and Repeat violations are the most severe and I usually cringe when clients come to me with Willful and Repeat violations because the fines associated with such violations are substantially greater than the fines associated with Serious or Other than Serious violations and, if the citation sticks, Repeat and Willful violations really put a black mark on the company.  Where the basis for classifying the violation as Willful or Repeat is questionable, Harmon & Davies has frequently counseled our clients to contest the classification of the violation and we have reached favorable results for our clients in terms of having the classification of the violation reduced.

As stated above, the decision in Dayton Tire v. Secretary of Labor gives employers even more grounds upon which to contest a Willful violation.  In challenging a citation, the law says that regardless of the classification of the violation, OSHA must be able to prove that the employer had knowledge of the violative condition.  This standard protects employers from the rouge employee who, despite the employer’s best efforts to create a safe and compliant workplace, violates an OSHA regulation without the employer having any knowledge of it.

Even though the employer’s knowledge of the violation is required for every level of citation, a Willful violation requires that OSHA not only show that the employer had knowledge of the violation, but that an employer committed the violation voluntarily with either an intentional disregard of or plain indifference to OSHA regulations.  To prove that the violation was properly classified as Willful, the Secretary of Labor must show that the employer was actually aware, at the time of the violative act, that the act was unlawful, or that the employer possessed a state of mind that if it were informed that it was violating an OSHA standard, the employer would not care.  In other words, it takes a lot to show that an employer was plainly indifferent.  Accordingly, in the Dayton Tire case, the U.S. Court of Appeals for the District of Columbia Circuit held that based upon the Secretary of Labor’s failure to cite to a single piece of evidence indicating that the company’s manager was actually aware that the company’s actions were unlawful, the Secretary of Labor could not prove that the violation was Willful.  Thus, the Court vacated the penalties assessed against the employer.

In so ruling, the DC Circuit court (a federal appellate court) remarked that findings of plain indifference have only been upheld where the evidence shows that a company made no effort to address repeated warnings from employees or OSHA that the company was in violation of safety standards.  The allegations involved in the Dayton Tire case failed to reach that level.  Rather, the evidence in Dayton Tire showed that one of the safety managers made an attempt to respond to safety concerns involving Lockout/Tagout procedures when such concerns were raised.  Although the safety manager might have done more, she did not utterly fail to act.  As such, the safety manager’s responses reflected negligence at most, which evidence is insufficient for a finding of a Willful violation.  Accordingly,under the precedence established in Dayton Tire, so long as employers act in good faith, even if they are wrong, , such employers should not be cited for Willful violations.

If you are an employer who has been issued an OSHA citation, the attorneys at Harmon & Davies are here to assist you with evaluating the merits of your citation and determining whether you should contest the citation.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Construction Contractor Gets OSHA Citations Vacated

In November 2006, the Occupational Safety and Health Administration (“OSHA”) cited and fined Volks Constructors, a full service heavy industrial contractor, $13,300 for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006.  The contractor contested the citations on the grounds that they were untimely because they were issued at least six months after the last recorded injury occurred.  Pursuant to OSHA regulations, no citation may be issued after the expiration of six months following the occurrence of any violation.

By way of background, the Occupational Safety and Health Act provides that each employer shall make, keep and preserve records of workplace injuries and illnesses.  OSHA regulations require employers to record information about work-related injuries and illnesses in three ways:

(1)               employers must prepare an incident report and a separate injury log within seven calendar days of receiving information that a recordable injury or illness has occurred;

(2)               employers must prepare a year-end summary report of all recordable injuries during the calendar year, which summary must be certified by a company executive; and

(3)               the employer must save all of these documents for five years from the end of the calendar year that those records cover.

In the case of Volks Constructors, OSHA began an inspection of Volks in May 2006 and discovered that Volks had not been diligent in completing its logs, forms, and summaries between 2002 and 2006.  OSHA then took approximately six months to issue a set of citations to Volks for violations related to Volks’ failure to fully complete incident report forms, its failure to enter injuries in the log, its failure to conduct year-end reviews between 2002 and 2005 and, in at least one instance, its failure to have the proper person certify the year-end review.  Notably, Volks was not cited for any violation of the requirement that it save the forms and the log for five years.

Volks’ improperly recorded injuries occurred between January 11, 2002 at the earliest and April 22, 2006 at the latest.  By the time OSHA issued the citations in November, however, the citations were issued a maximum of 54 months after the earliest improperly recorded injury and a minimum of six months, plus ten days, after the latest improperly recorded injury.

Volks moved to dismiss the citations as untimely because OSHA regulations state that no citation may be issued after the expiration of six months following the occurrence of any violation and the injuries giving rise to Volks’ recording failures took place more than six months before the issuance of the citations.  An OSHA Administrative Law Judge (“ALJ”) ruled in favor of OSHA and Volks appealed to the Occupational Safety and Health Review Commission (“OSHRC”).  On appeal the Secretary of Labor argued that Volks’ violations were continuing violations that prevented the six month statute of limitations from expiring until the end of the five-year document retention period.  The Secretary essentially argued that because Volks’ violations were still occurring on May 10, 2006 when the inspection began, the citations were timely because they were issued within six months of May 10, 2006.  The Commission agreed with the Secretary and affirmed the citations.  Volks then filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit.

On review, the District of Columbia Circuit was asked to decide whether OSHA’s record-keeping requirement, in conjunction with the five-year regulatory retention period permits OSHA to subvert the six-month statute of limitations.

In reviewing the Commission’s decision, the Circuit Court noted that pursuant to OSHA regulations, OSHA may cite employers for violations within six months of the violation’s occurrence; meaning if an injury is reported on May 1, OSHA can cite an employer for the failure to create a record beginning on May 8, and may issue a valid citation for such failure anytime within the following six months, and only the following six months.  Moreover, once an employer has made such a record, it must also retain it for five years.  If the employer loses or destroys a record before the end of the five year record retention period this is another violation.   OSHA may cite employers for violations of the five year record retention requirement within six months of the violation’s occurrence.  In other words, OSHA may cite a company for failure to maintain its records for the required five years for six months after the fifth year, and only for six months after the fifth year.  In the Volks case, OSHA never cited Volks for a violation of the five year record retention requirement because it could not cite Volks for the loss or destruction of a record that Volks never made.  Rather, OSHA only cited Volks for the failure to create a record.

Thus, the DC Circuit Court concluded that the citations were issued far too late and therefore had to be vacated.  The court concluded that the statutory language which deals with record keeping is not authorization for OSHA to cite the employer for a record-making violation more than six months after the recording failure. Rather, OSHA must enforce record-making violations swiftly or else forfeit the chance to do so.

In reaching this decision, the DC Circuit Court strongly disagreed with the Secretary’s argument that the five year record keeping requirement extended the statute of limitations by noting that the Secretary’s interpretation incorrectly assumed that the obligation to maintain an existing record expands the scope of an otherwise discrete obligation to make the record in the first place.  The Circuit Court viewed the two obligations as distinct stating “one cannot keep what never existed; a company cannot retain a record it never created.”

Notably, the DC Circuit Court distinguished the Volks case as a case of inaction ( i.e., Volks failed to properly create certain reports) from a case of continuing action.  For example, the court noted that where a company continues to subject its employees to unsafe machines, or continues to send its employees into dangerous situations without appropriate training, OSHA may be able to toll the statute of limitations on a continuing violations theory because the dangers created by the violations persist.

Based on the decision reached in the Volks case, if you receive an OSHA citation more than six months after a discrete violation of an OSHA regulation, you should strongly consider contesting the citation on the grounds of timeliness.  The attorneys at Harmon & Davies can assist you with contesting OSHA citations.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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