OSHA to Raise Penalties, Again

July 04, 2016

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. The new law directs agencies to adjust their penalties for inflation each year using a much more straightforward method than previously available, and requires agencies to publish catch up rules this summer to make up for lost time since the last adjustments.

As a result, the U.S. Department of Labor announced recently two interim final rules to adjust its penalties for inflation based on the last time each penalty was increased.

“Civil penalties should be a credible deterrent that influences behavior far and wide,” said U.S. Secretary of Labor Thomas E. Perez. “Adjusting our penalties to keep pace with the cost of living can lead to significant benefits for workers and can level the playing field responsible employers who should not have to compete with those who don’t follow the law.”

The first rule will cover the vast majority of penalties assessed by the department’s Employee Benefits Security Administration, Mine Safety and Health Administration, Occupational Safety and Health Administration, Office of Workers’ Compensation Programs, and Wage and Hour Division. The second rule will be issued jointly with the Department of Homeland Security to adjust penalties associated with the H-2B temporary guest worker program.

Under the 2015 law, agencies are directed to publish interim final rules by July 1, 2016. The department will accept public comments for 45 days to inform the publication of any final rule.

The new method will adjust penalties for inflation, though the amount of the increase is capped at 150% of the existing penalty amount. The baseline is the last increase other than for inflation. The new civil penalty amounts are applicable only to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015.

The rules published under the 2015 law will modernize some penalties that have long lost ground to inflation:

OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78%. The top penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.
OWCP’s penalty for failure to report termination of payments made under the Longshore and Harbor Workers’ Compensation Act, has only increased $10 since 1927, and will rise from $110 to $275.
WHD’s penalty for willful violations of the minimum wage and overtime provisions of the Fair Labor Standards Act will increase from $1,100 to $1,894.

A Fact Sheet on the Labor Department’s interim rule is available here. A list of each agency’s individual penalty adjustments is available here.

Sedaxane Listed as Carcinogen

Effective July 1, 2016, California's Office of Environmental Health Hazard Assessment (OEHHA) added sedaxane (CAS No. 874967-67-6) to the list of chemicals known to the state to cause cancer for purposes of Proposition 65.

The listing of sedaxane is based on formal identification by the US EPA, an authoritative body, that the chemical causes cancer. The criteria used by OEHHA for the listing of chemicals under the authoritative bodies mechanism can be found in Title 27, Cal. Code of Regs., section 25306.

The documentation supporting OEHHAs determination that the criteria for administrative listing have been satisfied for sedaxane is included in the Notice of Intent to List CMNP (Pyrazachlor) and Sedaxane posted on OEHHAs website and published in the June 26, 2015 issue of the California Regulatory Notice Register (Register 2015, No. 26-Z). The publication of the notice initiated a public comment period that closed on July 27, 2015. OEHHA received public comments on sedaxane. The comments and OEHHAs responses are posted with the Notice of Intent to List.

A complete, updated chemical list is published in this issue of the California Regulatory Notice Register and is available on the OEHHA website at http://oehha.ca.gov/proposition-65/proposition-65-list.

Safe Use Determination for Diisononyl Phthalate in Vinyl Flooring Products

The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency for the implementation of the Safe Drinking Water and Toxic Enforcement Act of 1986. OEHHA received a request from the Resilient Floor Covering Institute (RFCI) on behalf of its member companies that OEHHA issue a Safe Use Determination (SUD) for the use of diisononyl phthalate (DINP) in vinyl flooring products, pursuant to OEHHA’s authority under Section 25204(a) of Title 27 of the California Code of Regulations. The products that are the subject of this request are non-textile vinyl flooring products used in residential, commercial and institutional buildings. These products are available either as sheets or tiles, and can be installed by both flooring professionals and do-it-yourself consumers. DINP was listed under Proposition 65 as a chemical known to the state to cause cancer effective December 20, 2013.

In accordance with the process set forth in Section 25204(f), OEHHA held a written public comment period on this request from January 2 to February 25, 2015. OEHHA also held a public hearing on February 25, 2015, in Sacramento, California. No public comments were received.

As provided in Sections 25204(a) and (k), OEHHA is issuing the following SUD to RFCI for DINP in certain vinyl flooring products:

OEHHA is issuing a safe use determination for DINP exposures to residents of homes and other facilities from vinyl flooring products containing 18.9% DINP by weight, or less.

The essential elements and results of OEHHA’s assessment are described in the supporting document available at: http://oehha.ca.gov/proposition-65/proposition-65-safe-use-determinations-suds.

Based on the screening level exposure analysis described in the supporting documentation, an upper-end estimate of DINP exposure from vinyl flooring products was made for residents and compared to the No Significant Risk Level (NSRL) for DINP of 146 micrograms/day.

The estimated exposure to DINP from vinyl flooring products corresponds to a calculated excess cancer risk of one in 100,000 for exposures to residents with these vinyl flooring products containing 18.9% DINP by weight installed in their homes. Thus OEHHA determined that exposure of residents to DINP from these vinyl flooring products is at or below the NSRL when the DINP content in the product is 18.9% by weight, or less. A warning for products meeting this DINP concentration limit would not be required for residents in buildings where these products are present.

Questions regarding this notice may be directed to:

Michelle Ramirez

Office of Environmental Health Hazard Assessment

P.O. Box 4010, MS-12B

Sacramento, California 95812-4010

P65Public.Comments@oehha.ca.gov

Phone: 916-445-6900

Wei-Chuan U.S.A. Inc. Employee Suffers Fatal Fall

On June 22, 2016, OSHA issued citations to Wei-Chuan U.S.A., Inc., for one willful, one repeat, and six serious violations.

OSHA initiated an inspection on December 27, 2015, after the Jersey City Police Department notified the agency of a worker's death at the company's Jersey City food distribution warehouse. Inspectors found a 60-year-old warehouse supervisor died after falling 24 feet from a top-tier warehouse rack. Inspectors learned the company knowingly allowed forklifts to elevate employees on pallets as they conducted inventory.

OSHA cited the company with a willful violation for its failure to use an approved platform for raising employees on forklifts, and failure to provide fall protection. Hazard communication training deficiencies resulted in the repeat citation, for which OSHA cited Wei-Chuan previously in February 2011.

The agency found the serious violations were due to employees being allowed to improperly climb warehouse racks, lack of hand protection while handling hazardous materials, electrical hazards, hazard communication deficiencies and lack of forklift training.

"Wei-Chuan U.S.A. failed to provide required fall protection and ensure its forklift practices were safe, resulting in a preventable fatality. This tragedy could have been prevented if the company used basic safeguards and properly trained its employees to recognize workplace hazards," said Brian Flynn, acting director at OSHA's Parsippany Area Office.

Proposed penalties total $107,000.

Sunfield Inc. Fined $3.42 Million for Willfully Exposing Workers to Machine Hazards

OSHA issued 57 citations for safety violations to Sunfield, Inc., an Ohio auto parts' manufacturer. The agency has also proposed the company pay more than $3.42 million in total fines for its failure to disconnect machinery from a power supply and prevent sudden movement before maintenance and service, and to train workers in how to operate machine presses safely and to service and maintain them.

The fines assessed are one of the largest OSHA penalties ever filed against a company in the automotive parts industry.

Federal investigators inspected Sunfield's Hebron plant after two workers suffered severe injuries in separate incidents in January and February 2016. The facility has an extensive history of federal safety violations dating back 20 years. The company, which investigators found to have a high rate of employee turnover, supplies parts for several major Japanese and domestic automakers.

OSHA recently issued citations for 46 egregious willful, two willful, one repeated, and eight serious safety violations with penalties totaling $3,426,900 to Sunfield. The agency also placed the company in OSHA's Severe Violator Enforcement Program for failure to address these safety hazards. Most of the violations involve lack of machine safety procedures which expose workers to amputation, lacerations, and other injuries.

"When companies prioritize production and profit over the health and safety of their workforce, too often it is the workers that pay the price," said U.S. Secretary of Labor Thomas E. Perez. "OSHA's investigation found the company's leadership failed in its obligation to properly train workers for the jobs they were hired to do, and created a culture that routinely tolerated willful and serious safety violations."

OSHA investigation found:

On January 6, 2016, a 22-year-old male temporary worker employed by the staffing agency, Employers Overload, suffered multiple lacerations and a fractured right elbow, while removing scrap from a blanking press after operating machine parts caught his arm because safety light curtains were not operating correctly. OSHA's investigation found a supervisor had identified the safety issue two hours prior to the injury, and failed to place the equipment out of service. The injured worker had been on the job just six months.
On February 18, 2016, a full-time 58-year-old Sunfield employee had to undergo surgical amputation of his right arm above the elbow after his arm was crushed as he removed scrap on a robotic press line. Investigators again found that the machine's danger zone did not have adequate safe guards to prevent employees from coming in contact with operating machine parts. He had been on the job for just a year.

Prior to these inspections, Sunfield had an extensive history of OSHA violations. Since 1997, 16 of 20 inspections conducted found multiple violations. In total, the agency has issued 118 citations that have addressed numerous machine hazards similar to those cited recently and resulted in 90 serious, eight willful, and five repeated violations to the company, which has repeatedly assured OSHA that it would address the unsafe conditions.

"Sunfield made and broke countless promises to improve safety conditions and eliminate serious hazards on the factory floor. The company also ignored its own corporate safety manuals and its safety manager's warnings that workers lacked the training to protect themselves. And still, the company risked the safety and well-being of its employees as they operated dangerous and powerful industrial machines," said Dr. David Michaels, Assistant Secretary of Labor of Occupational Safety and Health.

"Sunfield has shown a total disregard for its workers, the kind rarely seen since the darkest days of the past when callous industrialists ruled and put profits before human suffering and common decency," Michaels added. "This has to stop. We hope that today's action brings an end to these conditions and convinces this employer that their behavior is intolerable."

OSHA found that the company did not take the necessary steps to protect its workers from being injured by moving machine parts. It did not prevent machines from unintentionally starting when workers were performing service and maintenance such as clearing scrap, and also failed to provide adequate safety mechanisms such as guards, locking devices, and other procedures to prevent contact with those moving parts. These types of violations are among the most frequently cited by OSHA and often result in death or permanent disability.

The agency also found multiple electrical safety violations including lack of personal protective equipment, workers exposed to "live" electrical parts, and use of damaged equipment.

Under OSHA's regulations, temporary and host employers are both responsible for ensuring employees are trained about safety hazards in the facility where they are placed to work. Three agencies, Atrium Personnel and iforce of Heath, as well as Employers Overload of Newark have been cited by OSHA for failing to provide lockout/tagout training for affected employees and for failing to provide mechanical power press safe operation training prior to sending temporary employees to the site. Each company faces proposed penalties of $7,000.

View citations for January and February investigations.

Dearborn Heights School District to Pay $193,139 to Employee Punished for Warning of Asbestos Exposure

Federal investigators have determined a Michigan janitor was labeled a troublemaker and subjected to a continuing litany of adverse personnel actions by the Dearborn Heights School District after she complained about exposure to asbestos while cleaning school floor tiles.

The U.S. Department of Labor's Occupational Safety and Health Administration found the school district violated the whistleblower provisions of the Clean Air Act, and has ordered the district to pay the worker a total of $193,139 in back wages, damages, and other compensation.

"No worker should be harassed or punished for reporting unsafe working conditions, advocating for other employees and seeking assurance that they are not being exposed to carcinogenic materials such as asbestos which can impact their long-term health," said Ken Nishiyama Atha, OSHA's regional administrator in Chicago. "OSHA's investigation found the Dearborn Heights School District clearly knew the tiles contained asbestos and failed to protect workers from exposure."

OSHA has ordered the school district to pay the janitor $8,139 in lost wages, minus applicable employment taxes, $45,000 toward current and future medical bills, and $140,000 in compensatory damages for loss of reputation and distress, as well as reasonable attorney's fees.

In June 2012, the janitor objected when the director of operations and construction management told her to dry sand floor tiles that contained asbestos at Annapolis High School. The director failed to train the workers in asbestos hazards and failed to provide protective equipment.

The janitor's action began a three-and-half-year period ending in September 2015 during which she suffered various adverse personnel actions as she continued to raise concerns about asbestos levels in the schools, presented medical documentation of her asbestos exposure, and advocated in an effort to protect other employees. She also received reprimands after she filed complaints with the State of Michigan, the EPA, and the Michigan Occupational Safety and Health Administration and spoke to media organizations about school conditions. In response, she endured layoffs, extra work and lack of pay raises, many of which violated her union contract.

Investigators determined the district falsely represented that a 2013 sampling was negative for asbestos. In June 2013, Michigan OSHA cited the district for exposing workers to asbestos containing material.

OSHA enforces the whistleblower provisions of 22 statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime and securities laws.

Both parties have 30 days from the receipt of OSHA's findings to file objections and request a hearing before an administrative law judge.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program.

MMC Construction Fined $130,500 for Exposing Workers to Dangerous Falls

Inspectors with OSHA issued citations to MMC Construction, LLC, of Montgomery, Alabama, for two willful safety violations after seeing employees working on the second level of a scaffold without guardrails. This inspection fell under OSHA's Regional Emphasis Program on Falls in Construction.

The agency issued the willful citations for the employer's failure to protect employees from fall hazards while working from heights up to 13 feet. MMC did not require the use of a ladder or other means of safe access to the scaffold and failed to ensure all open sides of the scaffold had guardrails.

Proposed penalties total $130,500.

"MMC Construction's continued refusal to comply with OSHA safety standards is putting its employees in serious and potentially fatal danger," said Joseph Roesler, OSHA's area director in Mobile. "Falls are a leading cause of death in the construction industry. OSHA remains committed to holding employers accountable for ensuring all workers are protected."

MMC has had six OSHA inspections in the last five years, and the agency as cited the company for violations of OSHA's construction scaffold standard in every inspection.

OSHA Urges Workers and Public to Take Precautions During Flood Cleanup

OSHA is deploying assets to flood-impacted West Virginia counties to ensure employers, workers, and others engaged in cleanup efforts avoid potential hazards and take steps to protect themselves.

OSHA compliance assistance officers will provide initial assistance in the three hardest hit counties of Kanawha, Greenbrier, and Nicholas—which the President declared as federal disaster areas.

"We want to ensure that employers do not put their workers at risk, and workers and the general public are aware of the hazards involved in flood cleanup work. Personal protective equipment and other precautions are necessary to prevent serious injury, illness and even death," said Richard Mendelson, OSHA's regional administrator in Philadelphia.

Before entering buildings or structures after a flood, an assessment of the potential hazards and exposure must be done. Using that information, an employer must ensure—at a minimum—they educate workers on the potential hazards facing them. Employers should also ensure that workers are given proper equipment and know how to use the gear to protect themselves.

The nature of cleanups varies by location. While a flooded residential home may not present the obvious hazards that a commercial property with stored hazardous chemicals would, each situation has its own challenges. Homeowners should be aware that damaged structures may be at risk of collapse, and the onset of mold may have already begun.

Workplaces may encounter these same dangers, in addition to many other serious safety threats, including chemical exposure. Employers should evaluate chemical workplace hazards and create a chemical inventory, which is part of a workplace hazard communication program.

In either situation, homeowners and employers should request the assistance of a safety and health professional.

People involved in flood cleanup should take the following precautions:

Wear a hard hat, safety glasses, reflective vest, gloves, and steel-toed work boots
In wet environments, stay dry with waterproof gloves and boots
Use respiratory protection, especially where dust and mold exists
Avoid dangerous falls and use fall protection when working more than 6 feet off the ground
Protect your hearing. In loud and noisy environments, hearing protection is important.
Work cleanly. Stop the spread of contaminants and disease with proper hygiene and sanitation.
Wash your hands regularly. Where suitable facilities are absent, use hand sanitizer.

OSHA's Hazard Exposure and Risk Assessment Matrix provides information on tasks and operations associated with disaster response and recovery, and common and significant hazards that response and recovery workers might encounter. The matrix can help employers make decisions during risk assessment that will protect their employees working in hurricane-impacted areas.

The following organizations provide additional resources:

OSHA Flood Response and Recovery Resources at http://www.osha.gov/dts/weather/flood/response.html.
National Institute of Environmental Health Sciences Hurricane and Flood Response Resources at http://tools.niehs.nih.gov/wetp/index.cfm?id=2472.
National Institute for Occupational Safety and Health Emergency Response Resources at http://www.cdc.gov/niosh/topics/emres/flood.html.

Workers Exposed to Amputation Hazards

After receiving several complaints about amputation hazards, OSHA investigators began an inspection January 11, 2016, at Terrill Manufacturing Company, Inc.'s facility in San Angelo. Their investigation found the woodworking manufacturer contracted with A.L. Staffing, Inc., doing business as Spherion Staffing, to provide temporary workers. After its investigation, the agency issued Terrill citations for 18 serious violations including:

Failing to establish a respiratory protection program
Not establish lockout/tagout procedures
Failing to lockout and isolate energy sources prior to maintenance or repair of machines
Not evaluating powered industrial truck operators every three years, as required
Allowing rotating rollers, belts, pulleys, sprockets and chains to operate without safety guards
Failing to prevent automatic restart of woodworking machines after power failures
Not furnishing ripsaws with a spreader, anti-kickback feature and adjustable guards
Not providing hazard communication training to employees working with hazardous chemicals
Allowing several hazardous electrical risks

OSHA also issued citations to A.L. Staffing for two serious violations, the first for allowing workers to operate machine rollers without machine guards, and another for allowing workers to operate machines without guards to prevent contact with chains and sprockets.

The agency has assessed proposed fines totaling $58,800 for Terrill Manufacturing Company and $4,800 for A.L. Staffing.

"Industrial machines are very unforgiving and can cause permanent disfigurement if employers fail to cover the moving parts, guard the points of operation and control the energy sources when servicing or repairing the equipment," said R. Casey Perkins, OSHA's Area Director in Austin. "This inspection should serve as a warning to Terrill Manufacturing and A.L. Staffing that they both need to correct these violations before an employee is critically injured."

S.J. Louis Construction of Texas LTD Fined $52,100 for Exposing Workers to Excavation Hazards

OSHA has issued citations to S.J. Louis Construction of Texas LTD, for two serious violations and one repeat violation for exposing workers to crushed-by and cave-in hazards when working in an unprotected excavation site in Houston. The agency initiated the inspection in March 2016 when an investigator saw workers exposed to the hazards as he drove by the excavation site. OSHA cited the employer previously for exposing workers to cave-in hazards on February 2012. The inspection was initiated as part of the National Emphasis Program on Excavations.

Proposed penalties total $52,100.

"Workers exposed to trenching hazards are in serious and immediate danger. S.J. Lewis failed to comply with common sense safety practices and such repeated negligence will not be tolerated," said Steve DeVine, OSHA's acting area director in the Houston North Area Office. "Every employer is responsible to find and fix hazards in the workplace."

Alliance Industries Inc. Failed to Establish Proper Safety Standards for Sulfur Dioxide

OSHA issued nine serious violations and one other-than-serious safety violation to Menasha-based Alliance Industries, Inc. A February 2016 complaint investigation found the company failed to comply with OSHA's process safety management standards for using sulfur dioxide at its Waupaca, Wisconsin, facility that manufactures foundry sand cores and performs metal coating.

An investigation by the agency's Appleton area office found the company failed to:

Incorporate good engineering practices for the sulfur dioxide delivery system
Compile process safety technology and equipment information for the sulfur dioxide delivery system
Develop and implement a mechanical integrity program for the sulfur dioxide delivery system
Conduct a process hazard analysis of the sulfur dioxide delivery system
Develop written procedures for start-ups, shutdowns, and maintenance of the sulfur dioxide delivery system
Conduct an annual inspection of energy control procedures

"Sulfur dioxide is a toxic gas that can cause respiratory and other serious health issues when inhaled," said Robert Bonack, OSHA's area director in Appleton. "When highly hazardous chemicals are not properly controlled and stored, there is a potential for unintentional release. Companies using sulfur dioxide in their manufacturing process must utilize engineering and administrative controls to reduce the potential for an uncontrolled release and take steps to protect workers from exposure."

Proposed penalties total $41,580.

Banjo Billy’s Bus Tours Ordered to Pay Whistleblower $11,000

OSHA has ordered the former owner of Banjo Billy's Bus Tours to pay a former employee back wages, interest, and punitive damages after the agency found he terminated an employee who refused to drive an unsafe tour bus.

OSHA's Whistleblower Protection Program found reasonable cause to believe that John Georgis, previous owner of the Boulder-based tour operator, which offers guided bus tours in the Denver and Boulder areas, retaliated against the employee in violation of the worker's rights under the Surface Transportation Assistance Act. The STAA protects workers who raise concerns about commercial motor vehicle safety or security or refuses to operate an unsafe vehicle.

Following its investigation, the agency ordered the company's former owner to pay the former bus operator $11,000 in back wages, interest, and punitive damages. The company must also expunge the former employee's work records of any reference to their termination. Banjo Billy's Bus Tours is currently under new ownership.

"Employees should be free to exercise their rights under the law without fear of termination or retaliation by their employers," said Gregory Baxter, OSHA's Regional Administrator in Region 8 in Denver. "This lawsuit underscores the department's commitment to vigorously take action to protect workers' rights."

Whistleblower provisions enacted by Congress prohibit employers from retaliating against employees who raise various protected concerns or provide protected information to the employer or the government. Employees who believe their employer has retaliated against them for engaging in protected conduct may file a complaint with the secretary of labor for investigation by OSHA's Whistleblower Protection Program.

Banjo Billy's Bus Tours or the complainant may file objections or request a hearing before the department's Office of Administrative Law Judges within 30 days of receipt of OSHA's order.

OSHA enforces the whistleblower provisions of the STAA and 21 other statutes protecting employees who report violations of various airline, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.