Weekly Toll

OSHA Penalties are going up:  OSHA’s maximum penalties are going up. Penalties for serious violations are rising from $13,653 to $14,502. Penalties for willful or repeat violations go up from $136,532 to 145,027.   Maximum OSHA penalties are now pegged to inflation and are modified every January.  Note that these are maximums: the average OSHA penalty for a serious violation last year was $5,473.

Clearing Potholes and Protecting Health Care Workers: Congressman Robert “Bobby” Scott (D-VA) , chair of the House Education and Labor Committee, and Rep. Alma Adams (D-NC), chair of the Workforce Protections subcommittee have sent a letter to President Biden and Labor Secretary Marty Walsh expressing their “alarm” of OSHA’s decision to withdraw the Emergency Temporary Standard protecting health care workers from COVID-19. OSHA announced that it was withdrawing the standard because the agency would not be able to issue a permanent standard in the 6-months envisioned by the OSHAct. Scott and Adams noted, however that “Congress never contemplated, and the legislative history does not show, that grave dangers would be allowed to remain unmitigated while an emergency persists.” (More on that issue here.) Meanwhile, they wrote, “The grave danger of COVID-19 has not disappeared, and there is still an urgent need for enforceable standards to protect health care workers. The Department has an obligation to revisit its announced intention to withdraw the ETS, restore the ETS immediately, and move expeditiously to publish a final standard protective of workers.” Although it takes OSHA a long time to issue a permanent standard, “The White House uniquely has the power to streamline the pothole-strewn path of the regulatory process into an expressway.”

In addition, 21 Senators and 115 members of the House of Representatives sent a letter last week. to President Biden and Secretary Walsh urging the administration to quickly issue a final permanent Covid-19 OSHA standard for health care workers.

Will COVID Vaccine Mandates Cause Economic Chaos? Opponents of workplace vaccine mandates (or OSHA’s vax-or-test requirements) — including, apparently, the majority of the Supreme Court — believe that requiring workers to get vaccinated will make worker shortages (and supply chain problems) more severe and cause severe economic disruption.  But actual workers disagree. A majority of Americans currently working remotely said they would consider quitting their jobs if their employer required them to return to the office, according to a new survey conducted by the Morning Consult.  55% of teleworkers said they would think about leaving their jobs if they were told to physically return to their cubicles before they felt safe and  61% of workers polled said they would only be willing to return to the office if all of their colleagues were vaccinated.

 Workplace Violence: We came to help people, we didn’t come to die: We’ve written numerous times about workplace violence against health care and social service workers. (most recently here and here.) Most of the assaults you never hear of, because they don’t make the paper (or web). But some do. And sometimes the assaulters face legal action. For example a man who violently attacked two staff members at New Hanover Regional Medical Center in North Carolina was arrested and charged with two counts of attempted murder and two counts of assault by strangulation after he threw one emergency room worker on the ground, choking her until she fell unconscious, and attempting to snap the neck of another. The judge established his bond at $7.5 million, which is high because of laws passed in North Carolina in 2015 and 2019 designed to protect healthcare workers.

Meanwhile, OSHA has issued a $13,653 citation against Montefiore Medical Center in the Bronx due to inadequate safeguards for employees in the pediatric emergency department of the Children’s Hospital at Montefiore. “OSHA found that employees, including nurses, assistants, technicians and security personnel, were exposed to workplace violence. In some cases, physical assaults from violent patients occurred during one-on-one patient observations, while restraining patients during assaults and attempted escapes, and while performing holds on or restraining patients. The violent incidents resulted in worker injuries, including broken bones, bites, and neck, back and shoulder injuries. The injuries caused some employees to incur lost work time. The agency determined that Montefiore’s workplace violence prevention program was inadequate and lacked effective engineering and administrative controls and employee training to protect workers against the recurring hazard of workplace violence. The hospital also received a $3,902 citation for related recordkeeping violations.

It’s Cold Out There, but OSHA is Hot: We may be freezing in the icy depths of winter, but OSHA’s never takes its mind of the heat. Not only is the agency working on a heat standard, but earlier this week, OSHA issued a $24,576 General Duty Clause citation against Earthbalance Corp., an environmental restoration firm for the death of an employees working to clear invasive plants from the Apalachicola National Forest. The temperature was over 100 degrees and there was no cell phone signal to get help from a ranger station when the worker started showing signs of heat stroke.   OSHA accused the company of  exposing workers to hazards related to high ambient heat and failing to adequately train a person to perform first aid, and ensure they were available to render assistance in heat-related emergencies.  Comments are due next week on OSHA’s Advance Notice of Proposed Rulemaking on heat.  Other heat-related OSHA materials can be found here.

Who Pays for Miners Suffering From Black Lung:  Education and Labor Committee Chairman Bobby Scott (VA-03) and Subcommittee on Workforce Protections Chairwoman Alma Adams (NC-12), introduced the Black Lung Benefits Disability Trust Fund Solvency Act of 2022The legislation would extend the black lung excise tax rate, which expired at the end of last year, to fund future benefits and health care for miners suffering from black lung disease. A higher tax rate expired in 2021 and hasn’t been renewed. Without revenue from the increased tax in the Scott-Adams bill, the Black Lung Disability Trust Fund is at-risk of becoming insolvent at a time when the number of black lung cases, particularly the more severe progressive massive fibrosis is rapidly increasing. The fund pays benefits to miners as well as their eligible survivors and dependents when no responsible coal operator is identified or the liable operator does not pay. A May 2018 GAO report found that failure to extend the tax rate will increase the Fund’s debt from approximately $5 billion to $15 billion by 2050.  For much more information on the fund, and the plight of miners suffering from black lung, check out this excellent article by Mike Tony in the Charleston Gazette-Mail.

BLM Gets Off Egregiously Cheap: For the first time in its history, OSHA has used its egregious violation policy in citing unsafe working conditions at a federal facility. The agency issued 21 notices of unsafe working conditions to Bureau of Land Management’s Cliffside Helium Enrichment Unit in Amarillo, a federal chemical producing plant that refines and sells helium products to private entities. Under an Executive Order, OSHA has authority over the health and safety conditions in federal facilities, but cannot issue financial penalties.  But OSHA’s press release pointed out that “the violations of process safety management procedures would carry a private sector penalty of $1,023,987.”   According to OSHA Assistant Secretary Doug Parker, the facility “willfully and repeatedly failed to take required safety measures to ensure the facility’s compliance with federal safety and health procedures and protect employees from chemical production hazards.”  OSHA issued six willful safety violations include failing to train workers to understand the purpose and function of the energy control program, and five egregious willful violations are for failing to perform inspections and tests on process equipment. OSHA cited serious violations for process safety management failures, and other-than-serious safety violations involved notification and records violations.  Egregious violations are also known as “instance by instance” violations, because instead of issuing one violation for unsafe working conditions in a facility, OSHA issues a separate violation for each worker exposed to the hazard. In addition to penalizing the employer, egregious violations “serve a public policy purpose; namely, to increase the impact of OSHA’s limited enforcement resources.”


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