OSHA’s New, Expedited Whistleblower Review Process

August 22, 2016

The U.S. Department of Labor is launching a new pilot process in its Western region. The "Expedited Case Processing Pilot" allows a complainant covered by certain statutes to ask OSHA to cease its investigation and issue findings for the department's Office of Administrative Law Judges to consider.

The move is possible only if the case meets certain criteria. Administrative law judges may order the same remedies as OSHA, including back pay, compensatory damages, punitive damages where authorized, attorneys' fees and reinstatement.

The department acknowledges that OSHA's investigation process can take time, and complainants may be able to receive a determination more quickly without losing their rights to a hearing by electing to expedite OSHA's processing of their claims.

"The ultimate goal is to bring about quicker resolution for whistleblowers and their employers regarding claims of retaliation for reporting safety and other concerns on the job," said Barbara Goto, OSHA's regional administrator in San Francisco.

The pilot became effective August 1, in the agency's San Francisco region, which includes California, Nevada, Arizona, Hawaii, and the islands of American Samoa, CNMI, and Guam.

Once a complainant requests expedited processing, the case will be assessed for the following criteria:

  • The claim is filed under a statute that allows for de novo review by an administrative law judge
  • Depending on the statute, 30 or 60 days have passed from the date the complainant first filed with the claim with OSHA
  • OSHA has interviewed the complainant
  • Federal investigators have evaluated the complaint and the complainant's interview to determine if the basic elements of a retaliation claim exist
  • Both the complainant and the respondent have had the opportunity to submit written responses, meet with an OSHA investigator and present statements from witnesses
  • The complainant has received a copy of the respondent's submissions and had an opportunity to respond

Once OSHA officials determine that these criteria are met, they will evaluate the claim to determine—based on the information gathered up to the date of the complainant's request for expedited processing—whether reasonable cause exists to believe that a violation of the statute occurred. OSHA officials will then take one of three actions: dismiss the claim and inform the complainant of the right to proceed before an administrative law judge; issue merit findings as expeditiously as possible; or deny the request.

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, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime, and securities laws.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor to request an investigation by OSHA's Whistleblower Protection Program.

Charlotte RCRA/DOT Update and IATA Training

Register for RCRA Hazardous Waste and DOT Hazardous Materials Update and Refresher Training in Charlotte, NC, on September 7 and update your DOT and RCRA training in one day. Learn how to ship dangerous goods by air at Transportation of Dangerous Goods: Compliance with IATA Regulations on September 8. To register for these courses, click here or call 800-537-2372.

Nashville RCRA and DOT Training

Register for Hazardous Waste Management: The Complete Course and DOT Hazardous Materials Training: The Complete Course in Nashville, TN, on September 13–15 and save $100. To take advantage of this offer, click here or call 800-537-2372.

Columbus RCRA and DOT Training

Register for Hazardous Waste Management: The Complete Course and DOT Hazardous Materials Training: The Complete Course in Columbus, OH, on September 20–22 and save $100. To take advantage of this offer, click here or call 800-537-2372.

How to Implement OSHA’s Globally Harmonized Hazard Communication Standard (GHS)

OSHA has issued a final rule revising its Hazard Communication Standard, aligning it with the United Nations’ globally harmonized system (GHS) for the classification and labeling of hazardous chemicals. This means that virtually every product label, safety data sheet (formerly called “material safety data sheet” or MSDS), and written hazard communication plan must be revised to meet the new standard. Worker training must be updated so that workers can recognize and understand the symbols and pictograms on the new labels as well as the new hazard statements and precautions on safety data sheets.

Environmental Resource Center is offering live online training for you to learn how the new rule differs from current requirements, how to implement the changes, and when the changes must be implemented. Bring your questions to the upcoming webcasts on How to Implement OSHA’s Globally Harmonized Hazard Communication Standard (GHS) on November 15.

CSB Deploying to Site of Hot Work Incident that Injured Seven Workers in Texas

An investigative team from the U.S. Chemical Safety Board (CSB) is deploying to the scene of an incident that injured seven workers—including three critically—that occurred Friday August 12 at the Sunoco Logistics Partners, a terminal facility in Nederland, Texas.

According to initial inquiries the incident involved a flash fire during welding—also referred to as hot work—activities at the facility. Hot work is defined as burning, welding, or similar spark-producing operations that can ignite fires or explosions. Media reports state that all of the injured were contractors engaged in work activities on a crude oil pipeline connection.

“The CSB has investigated too many incidents involving hot work—my thoughts go out to the workers and their families affected by this tragedy” said Chairperson Vanessa Allen Sutherland. “In an effort to warn of the dangers of hot work the CSB has issued a wide range of material regarding the dangers of hot work including safety videos, a safety bulletin, and accident investigations.

The investigative team will be led by Investigator-in-Charge Mark Wingard and will be accompanied by Chairperson Vanessa Allen Sutherland.

The CSB is an independent federal agency charged with investigating industrial chemical accidents. The agency’s board members are appointed by the president and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.

For more information, contact Hillary Cohen at 202-446-8094 or via email at public@csb.gov.

Updated Excessive Heat Events Guidebook

EPA’s Excessive Heat Events Guidebook is designed to help community officials, emergency managers, meteorologists, and others plan for and respond to excessive heat events. The guidebook highlights best practices employed by urban areas to save lives during excessive heat events, and provides a menu of options that officials can use to respond to these events in their communities. Earlier this year, to help users find the most up-to-date information about extreme heat, EPA and its federal partners updated Appendix A of the guidebook, “Excessive Heat Event Online Federal Resources.”

EPA also has a page of general information related to extreme heat events, to help communities and businesses prepare for and respond to heat waves.

Amputation at Tyson Foods

A gruesome employee injury led federal workplace safety inspectors to discover the nation's largest meat and poultry processor endangered workers by exposing them to amputation hazards, high levels of carbon dioxide and peracetic acid without providing personal protective equipment.

Responding to a report of a finger amputation at the Tyson Foods, Inc., chicken-processing facility in Center, Texas, OSHA inspectors identified two repeated and 15 serious violations. The company faces $263,498 in proposed fines.

The investigation determined the employee suffered an amputation when his finger became stuck in an unguarded conveyor belt as he worked in the debone area and tried to remove chicken parts jammed in the belt.

OSHA inspectors also found more than a dozen serious violations including failing to ensure proper safety guards on moving machine parts, allowing carbon dioxide levels above the permissible exposure limit, failing to provide personal protective equipment and not training employees on hazards associated with peracetic acid. Used as a disinfectant, the acid can cause burns and respiratory illness if not handled safely.

"Tyson Foods must do much more to prevent disfiguring injuries like this one from happening," said Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. "As one of the nation's largest food suppliers, it should set an example for workplace safety rather than drawing multiple citations from OSHA for ongoing safety failures."

Inspectors also found employees exposed to slip-and-fall hazards due to a lack of proper drainage, trip-and-fall hazards caused by recessed drains and fire hazards resulting from of improper stored compressed gas cylinders. The inspection falls under OSHA's Regional Emphasis Program for Poultry Processing Facilities.

OSHA cited the company for repeated violations for not making sure employees used appropriate eye or face protection when exposed to eye or face hazards. The agency cited Tyson for a similar violation in a 2012 investigation at its Carthage facility. The company also failed to separate compressed gas cylinders of oxygen and acetylene while in storage - a violation for which OSHA cited the company in 2013 at its Albertville, Alabama, facility.

USPS Faces $111,540 in Fines for Multiple Safety Violations

On August 1, 2016, OSHA issued one other-than-serious violation and five repeated violations to the U.S. Postal Service LLC, doing business as Silver Spring MPO Carr Annex Hotel in Silver Spring, Maryland. Proposed penalties total $111,540.

OSHA began the inspection on February 4, 2016, in response to a complaint alleging blocked exits, tripping and fall hazards.

The agency found recordkeeping and housekeeping violations, exit signs not posted, electrical equipment improperly used, locked and blocked exits and fall hazards, resulting in the citations.

"The Postal Service has a responsibility to provide its employees with safe and healthful workplaces. But the hazards we found at the Silver Spring location show that it continues to expose workers to powered industrial equipment hazards, blocked exits, and fall hazards," said Nadira Janack, director at OSHA's Baltimore Area Office. "Each year thousands of workers are injured—some fatally—by electrical hazards in the workplace. Putting workers' lives in danger is unacceptable and the Postal Service needs to re-evaluate this facility and correct these hazards immediately."

Illinois Contractor Continuously Exposes Workers to Falls

Illinois contractor Robert Barringer III's long history of putting his workers in danger of debilitating or fatal falls at his company's job sites continues, this time at a residential home under construction in Glen Carbon.

On July 29, 2016, OSHA issued citations to Barringer Brothers Roofing of Belleville, Illinois, for two willful, two repeated, and six serious safety violations. The agency opened an inspection on May 18, 2016, after inspectors observed five roofers working at a height of 13 feet without adequate fall protection. In this case, the contractor faces proposed penalties of $89,100.

"Robert Barringer has shown a callous disregard for the safety of his employees and utter indifference to the law. OSHA will use every option available to us to hold him accountable for his shameless behavior," said Aaron Priddy, OSHA's area director in Fairview Heights. "Fall protection is always required. Preventable falls cause the deaths of construction workers more than any other hazard. Each day that Barringer and his companies operate outside the law is a day that his workers' lives are in danger."

Barringer's extensive history of federal workplace safety violations extends back to 2006. Currently in default on $267,900 in federal penalties, OSHA has cited him 19 times under various company names in the past decade for failing to protect workers from fall hazards—the construction industry's most lethal danger. Statistics show falls cause four of every 10 deaths in the industry.

In April 2016, OSHA placed Barringer in its Severe Violator Enforcement Program after citing fall hazards on three separate job sites. His Belleville-based company has not responded to the April citations or the proposed penalties of $103,840. The department is currently working to collect all monies owed as a result of the previously levied and affirmed penalties. The agency has cited Robert Barringer III previously under the operating names Barringer Brothers Roofing, Barringer Brothers Inc. and Barringer Brothers Construction Inc.

Inspectors also noted other hazards in May, including employees without eye protection using nail guns, the absence of a competent person to provide regular job site inspections to monitor for safety hazards and a lack of fire extinguishers. The company has also failed to initiate and maintain an accident prevention program, a hazard cited by OSHA in 2013.

OSHA offers a Stop Falls online resource with detailed information in English and Spanish on fall protection standards. The page provides fact sheets, posters, and videos that illustrate various fall hazards and appropriate preventive measures. OSHA standards require that an effective form of fall protection be in use when workers perform construction activities 6 feet or more above the next lower level.

The agency's Fall Prevention Campaign was developed in partnership with the National Institute for Occupational Safety and Health and NIOSH's National Occupational Research Agenda program. Begun in 2012, the campaign provides employers with lifesaving information and educational materials on how to prevent falls, provide the right equipment for workers and train employees to use gear properly.

Furia Roofing Co. Inc. Fined $79,240 for Exposing Workers to Fatal Falls

On August 1, 2016, OSHA issued citations to Furia Roofing Co., Inc., of Clifton, New Jersey, for one repeat and three serious violations.

OSHA initiated an inspection on April 25, 2016, after a compliance officer observed Furia Roofing employees working on low slope roofs without fall protection and without effective fall protection, resulting in the repeat violations.

The serious violations relate to issues with fall protection equipment.

"Furia Roofing has repeatedly violated OSHA standards by failing to provide employees with fall protection and continuing to expose construction workers to serious injury or death. This failure to ensure worker safety indicates a problematic safety and health management system," said Lisa Levy, director of OSHA's Hasbrouck Heights Area Office. "OSHA will not tolerate this company continually endangering its workers. Furia should correct these hazards and implement an effective injury and illness prevention program for its workers."

Proposed penalties total $79,240.

National Manufacturing Co. Exposed Workers to Chemical Hazards

OSHA issued citations to National Manufacturing Co., of Chatham, New Jersey, for 10 serious safety violations on July 25, 2016.

Borough of Chatham officials alerted OSHA after a flash fire burned an employee as the worker cleaned a degreasing tank at National Manufacturing on January 29, 2016. The agency initiated a safety inspection on February 1, 2016. The agency then opened a health inspection on February 18, 2016, to evaluate chemical related health hazards after the safety inspection revealed the company's use of N-Propyl Bromide, also known as 1-Bromopropane, a chemical used to degrease metals, plastics, and electronic and optical components.

Inspectors identified multiple workplace safety violations. They found the company:

  • Exposed employees to hazards related to N-Propyl Bromide
  • Failed to provide fall protection for workers exposed to falls up to 7 feet
  • Allowed electrical and housekeeping hazards
  • Failed to medically evaluate and fit test employees using respirators

"National Manufacturing Co., put workers in harm's way by not properly controlling chemical hazards at its facility in Chatham. We found the company's lack of effective hazard management relating to its degreasing system directly resulted in flash fires on January 29 and February 9, 2016, just 11 days apart," said Kris Hoffman, director of OSHA's Parsippany Area Office. "This company must do what's right to protect its workers and provide a safe and healthy workplace."

Proposed penalties total $56,300.

Two Workers at Oprandy's Fire & Safety Equipment Inc. Injured in Tank Explosion

Two employees were injured severely at Oprandy's Fire & Safety Equipment, Inc., on February 12, 2016, when a compressed gas cylinder designed for a fire-suppression system exploded while they were attempting to fill it with compressed air from a high-pressure source.

OSHA inspectors from the Albany Area Office found the air device's pressure exceeded the cylinder's listed pressure limit. They also found the Oprandy's Fire & Safety Equipment failed to train the employees on the procedures needed to fill the cylinder properly.

Additional hazards involved the company failing to:

  • Equip the tank and valve assembly with a pressure relief device
  • Assess the workplace for hazards requiring the use of personal protective equipment
  • Require personnel to use personal protective eyewear and footwear
  • Stack and secure fire extinguishers and compressed gas cylinders properly
  • Develop, implement, and/or maintain a written chemical hazard communication program and provide employees with training on hazardous chemicals

As a result of these conditions, OSHA cited the company for seven serious violations of workplace safety standards. Proposed penalties total $19,774.

"Oprandy's Fire & Safety Equipment needlessly exposed its employees to a potentially fatal hazard that caused them to suffer serious injuries," said Robert Garvey, OSHA's area director for Albany. "Injuries are preventable when employers follow basic safety precautions in their industry, and train employees to recognize and prevent hazards."

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