Stronger OSHA and Increased Penalties Proposed

March 26, 2018

U.S. Senator Tammy Baldwin introduced legislation targeting unsafe working conditions to enhance workplace protections for employees. The Protecting America’s Workers Act would increase penalties for high gravity violations in the workplace and provides rights for workers and their family members.

“We need to provide greater protections for workers and their families, so no one gets hurt. Everyone should be able to go to work knowing they will come home at the end of the day in the same condition and without experiencing any threat to their health and safety,” said Senator Baldwin. “It is unacceptable that workers face unsafe working conditions or risk losing their job if they file a complaint. This legislation will improve the rights of employees, foster the safety of their workplaces and hold accountable the bad actors who break the law and do harm to American workers.”

As the Milwaukee Journal Sentinel reported in December 2017, OSHA reported two violations at Mid-America Steel Drum, an oil refurbishing plant owned by Greif, Inc. in Oak Creek, Wisconsin. The same company’s Milwaukee facility was cited with 15 serious violations in April 2017 for exposing workers to hazardous materials.

Under current law, an employer may be charged with a misdemeanor —at most—when a willful violation of OSHA leads to a worker’s death. The Protecting America’s Workers Act would authorize felony penalties against employers who knowingly commit OSHA violations that result in death or serious bodily injury and extend such penalties to corporate officers and directors.

According to the senate proponents of the bill, too many workers are being injured and even killed on the job. In 2016 alone, 5,190 workers were killed on the job, with Wisconsin witnessing 105 of those fatal work injuries and about 3.7 million worker injuries and illnesses being reported throughout the nation. The Protecting America’s Workers Act would improve reporting, inspection and enforcement of hazardous work conditions. This legislation also updates current OSHA civil penalties – which have remained too low to deter bad actors and sets a minimum penalty of $50,000 for a worker’s death caused by willful violation.

In addition, the legislation would enhance protections for whistleblowers like Will Kramer, who witnessed safety and environmental violations while an employee at Greif. Under the Protecting America’s Workers Act, workers like Kramer would have more rights in filing claims through expanding protections to public employees including contract workers and first responders. The legislation creates stronger penalties to deter repeated violations by providing authority for increased civil monetary penalties for willful and serious violations resulting in death or serious bodily injury. It also requires employers to correct serious, willful and repeat violations while they are contesting citations for OSHA violations. This aims to protect workers from potential hazards as soon as they are reported, rather than having to wait for OSHA and the cited workplace to settle a case and leave workers exposed to dangerous work environments for a longer period of time.

For over a year, Senator Baldwin has been working to hold Mid-America Steel Drum accountable, protect worker safety and keep neighborhoods safe. In February 2017, Senator Baldwin requested that Attorney General Jeff Sessions provide an update on the status of the Department’s investigation of whistleblower reports and urged swift movement on appropriate actions. She also called for investigations by OSHA, the EPA, DOT, and Securities and Exchange Commission (SEC).

As a result of Senator Baldwin’s efforts, investigations have been opened by OSHA, EPA and DOT at each of the three Mid-America Steel Drum facilities in Wisconsin (St. Francis, Oak Creek and Milwaukee). In addition, the DOT has expanded its investigation to Greif facilities across the country and the Wisconsin Department of Natural Resources is investigating as well.

The Protecting America’s Workers Act is cosponsored by Senators Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Ed Markey (D-MA), Bernie Sanders (I-VT) and Patty Murray (D-WA). More information on the Protecting America’s Workers Act is available here.OSHA is Focusing on Trench Safety

OSHA has announced that one of its priority goals for 2018 is to reduce trenching and excavation accidents. In 2011, OSHA said that two workers a month were killed in trench collapses, and the picture has not improved. According to the Bureau of Labor Statistics, excavation- and trench-related fatalities in 2016 were nearly double the average of the previous 5 years. OSHA’s general goal is to increase awareness of trenching hazards in construction, educate employers and workers on safe cave-in prevention solutions, and decrease the number of trench collapses.

In attempting to explain the upswing in fatalities, one construction professional points to “ignorance to safety rules, lack of supervision, pressures of time and money, and sometimes, outright laziness.” To that list, some employee safety groups add insufficient inspection and enforcement by federal and state safety agencies.

OSHA defines an “excavation” as any man-made cut, cavity, trench, or depression in the earth's surface formed by earth removal. A “trench” is defined as a narrow underground excavation that is deeper than it is wide and no wider than 15 feet. Working in either trenches or excavations carries risks, but because the space provided is more confined and trench walls are generally steeper, the hazards are higher in trenches. Cave-ins or collapses are the single greatest hazard; 1 cubic yard of soil may not sound like a lot, but it can weigh as much as 3,000 lb. Other risks include falls, falling loads, hazardous atmospheres, and encounters with mobile equipment.

“An unprotected trench is an early grave,” says OSHA. “Do not enter an unprotected trench.”

OSHA has promulgated regulations to ensure that trenches and excavations are safe working environments (29 CFR 1926.651 and 1926.652). Those rules should be read in their entirety and adhered to without exception. Here are the major requirements:

  • Trenches 5 feet deep or greater require a protective system unless the excavation is made entirely in stable rock. If less than 5 feet deep, a competent person may determine that a protective system is not required.
  • A competent person is “an individual who is capable of identifying existing and predictable hazards or working conditions that are hazardous, unsanitary, or dangerous to workers, soil types and protective systems required, and who is authorized to take prompt corrective measures to eliminate these hazards and conditions.”
  • Trenches 20 feet deep or greater require that the protective system be designed by a registered professional engineer (PE) or be based on tabulated data prepared and/or approved by a registered PE.
  • Safe access and egress is required for all excavations. Safety is provided by ladders, steps, ramps, or other safe means of exit for employees working in trench excavations 4 feet or deeper. These devices must be located within 25 feet of all workers.
  • Protection against collapse
  • The most widely used protective measures are sloping, benching (sloping with steps), shoring, and shielding. Shielding involves the use of structures called trench boxes or trench shields. The type of protection selected is generally contingent on the type of solid in which the excavation is made. Again, for deeper trenches, that determination must be made by a registered PE.


OSHA encouraged those who engage in trenching and excavation to participate in the National Utility Contractors Association’s (NUCA) 2018 Trench Safety Stand Down, being held June 18–23, 2018.  A safety stand-down presents the opportunity for employers to talk directly to employees and others about safety. The upcoming stand-down will focus on trench and excavation hazards and reinforce the importance of using trench protective systems and protecting workers from trenching hazards, says the NUCA.

OSHA also has a trenching and excavation special emphasis document that was released in 1985 and is currently being revised. The document is used to guide OSHA inspections of trenching and excavation operations.

Training Tool for Preventing Occupational Exposure to Opioids

Emergency medical services (EMS) providers, firefighters, and law enforcement personnel are among those who may encounter illicitly-manufactured drugs during their work. Given the potential for exposure to these drugs and the hazardous substances used to produce them, it is important that workers in these industries understand how to protect themselves.

The National Institutes of Environmental Health Science’s Worker Training Program (WTP) has developed an awareness-level training tool on the prevention of occupational exposure to fentanyl and other synthetic opioids. Several WTP awardees have also developed training courses for workers who may be involved in a methamphetamine (meth) lab discovery or a meth lab cleanup. These resources, along with additional health and safety resources related to occupational exposure to synthetic opioids and the hazards associated with clandestine meth labs can be found here.

Proposed Penalties of $133,604 for Repeat Offender

OSHA has again cited Jose A. Serrato, an independent roofing contractor based in Marietta, Georgia, for exposing employees to fall hazards at a worksite in Birmingham. The employer, who has been cited seven times in the past five years, faces $133,604 in proposed penalties.

OSHA conducted the investigation under the Agency’s Regional Emphasis Program for Falls in Construction, and cited Serrato for exposing employees to fall hazards of approximately 28 feet, and for failing to re-train employees who did not demonstrate the skills necessary to recognize fall hazards.

“Employers are responsible for ensuring their worksites are free of recognized hazards,” said Ramona Morris, OSHA Birmingham Area Office Director. “This employer has continually exposed employees to fall hazards by disregarding federal safety requirements.”

Michael Foods Inc Could Pay Almost $200,000 After Fatal Accident

OSHA has cited Michael Foods Inc., an egg processing facility based in Wakefield, Nebraska, for multiple safety violations after an employee suffered fatal injuries when he was struck by a dock leveler. A dock leveler is a device used to allow a forklift to travel between a loading dock and a trailer.

One of the employer’s dock levelers was undergoing maintenance. OSHA investigators determined that the employer failed to properly brace the dock leveler during the maintenance procedures, causing it to fall onto an employee who was assisting in the maintenance. OSHA cited Michael Foods Inc. for exposing employees to hazards associated with failing to properly brace equipment during servicing and maintaining; failing to develop written and effective training and procedures for lockout/tagout; and failing to conduct periodic reviews of the company’s lockout/tagout safety procedures. It also found violations relating to electrical and arc flash hazards.  Michael Foods Inc. faces $188,464 in proposed penalties.

“Employers are required to train workers on safety practices, and use appropriate hazard controls to ensure their safety,” said Jeff Funke, OSHA’s Omaha Area Office Director. “Proper safety controls and training can prevent fatalities like this from occurring.”

Alleged Safety Violations Resulted in $109,939 Proposed Penalties

OSHA has cited Kraft Heinz Foods Company for machine safety violations after an employee suffered a partial finger amputation while clearing a machine jam at the company’s Mason facility. The company faces $109,939 in proposed penalties.

OSHA inspectors determined Kraft Heinz Foods Company failed to: implement energy control procedures to prevent equipment from unintentionally starting; install adequate machine guards and energy isolation devices; and train employees on the use of energy control procedures.

Southeastern Subcontractors Cited for Extreme Heat Related Worker Fatality

Middleburg-based Southeastern Subcontractors Inc. has been cited by OSHA for failing to protect employees from the dangerous hazards of working outdoors in extreme heat.

OSHA investigated the roofing company after an employee died from hyperthermia while working at a residential site in Jacksonville. Hyperthermia occurs when the body’s temperature is abnormally high because it cannot regulate the heat from the environment. The Agency issued one serious citation for exposing employees to heat-related injuries, and one other-than-serious violation for failing to report a workplace fatality to OSHA within 8 hours of its occurrence. The company faces proposed penalties of $22,173.

“Employees exposed to heat on the job - whether indoors or outdoors - are at an increased risk of suffering heat-related illnesses, such as heat exhaustion and heat stroke,” said Brian Sturtecky, OSHA Jacksonville Area Office Director. “Tragedies such as these can be prevented if employers develop and implement a heat illness prevention program, and provide employees with water, rest, and shade.”

Hearing Injuries from Workplace Chemicals

Hearing impairment can be caused by exposure both to noise and to chemicals, and the impairment from either of those two exposures can be worse if there is exposure to both. Damage to hearing from chemicals—called ototoxicity; the chemicals themselves are called ototoxicants—is a relatively unknown cause of injury to workers, a state of affairs OSHA is endeavoring to change with a recent Safety and Health Information Bulletin.

“Research demonstrates exposure to certain chemicals, called ototoxicants, may cause hearing loss or balance problems, regardless of noise exposure,” states OSHA. “Substances including certain pesticides, solvents, and pharmaceuticals that contain ototoxicants can negatively affect how the ear functions, causing hearing loss, and/or affect balance. The risk of hearing loss is increased when workers are exposed to these chemicals while working around elevated noise levels.  This combination often results in hearing loss that can be temporary or permanent, depending on the level of noise, the dose of the chemical, and the duration of the exposure.”

The many ototoxicants include both well-known chemicals (e.g., toluene, p-xylene, carbon monoxide, and mercury compounds) and lesser-known pharmaceuticals (e.g., certain loop diuretics and antineoplastic agents). The lengthy list of industries where ototoxicants are found include machinery, textile and apparel, chemical (including paint), plastics, and furniture manufacturing.

Ototoxicants affect central portions of the auditory system (e.g., nerves or nuclei in the central nervous system, the pathways to the brain, or in the brain itself). Given that the nervous system is impacted, the effects include both loss of hearing (i.e., sounds need to be louder to be detected) and lose of clarity. Specifically, speech discrimination dysfunction—the ability to hear voices separately from background noise—may occur and involve compressed loudness (sound distortion); frequency resolution (the inability to differentiate two sounds with similar frequency); temporal resolution (the inability to detect time gaps between sounds); and spatial resolution (the inability to localize sound).

According to OSHA, speech discrimination dysfunction can be particularly dangerous in noisy environments because workers may not be able to hear coworkers, environmental sounds, and warning signals.

Measures to protect against ototoxicants can be more challenging than measures to protect against noise since exposure to ototoxicants can occur through multiple routes—inhalation, ingestion, and skin absorption.

Also, the exposure threshold for ototoxicity varies for each chemical based on its compound family, properties, exposure route, exposure concentration and duration, synergy with noise, and noise exposure, along with an individual's risk factors. The dose-response, lowest observed effect level (LOEL), and no observed effect level (NOEL) have been identified in animal experiments for only a few ototoxicants. Also, many chemicals are not identified as ototoxicants on their safety data sheets (SDSs).

The first step in preventing exposure to ototoxicants is to determine if they are in the workplace. As noted, SDSs may not specifically mention ototoxicity or ototoxicants. When this is the case, information on the chemical's general toxicity, nephrotoxicity, and neurotoxicity may provide clues about potential ototoxicity. “Most chemicals that are known to affect the auditory system are also neurotoxic and/or nephrotoxic,” says OSHA.

Once the presence of an ototoxicant has been confirmed, the employer must provide employees with safety information and training on the dangers of the chemical and measures to be followed to keep exposure at safe levels. Furthermore, employers must assess and determine the appropriate personal protective equipment (PPE) according to the general requirements in 29 CFR 1910.132, the respiratory protection requirements in 29 CFR 1910.134, and the hand protection requirements in 29 CFR 1910.138.

OSHA's occupational noise exposure standard at 29 CFR 1910.95 only requires audiometric testing at the noise action level (i.e., an 85-decibel 8-hour time-weighted average). However, wearing hearing protection and using audiometric testing to detect early signs of hearing loss, even in workers exposed below the action level and ototoxic chemicals below the permissible exposure limit (PEL), may prevent hearing loss from their synergistic effects.

Other protective measures may include:

  • Replacing ototoxicants with a less toxic chemical;
  • Using engineering controls, such as isolation, enclosures, and ventilation to control exposure to ototoxicants and noise; or
  • Eliminating unnecessary tasks that cause noise or ototoxicant exposure and operating noisy equipment when workers are not near.


Finally, employers that receive complaints from workers about hearing loss should investigate SDSs for ototoxicants.

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