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I’ve Got a Pen and I’ve Got a Phone

I’ve Got a Pen and I’ve Got a Phone

While discussing his frustration with Congress and what he viewed as their refusal to provide “Americans the kind of help that they need,” on Jan. 14, President Barack H. Obama uttered the words that serve as the title to this piece. This may be the most open admission that the Obama administration has effectuated massive change through the use of the pen (executive orders) or the phone (direction to his appointees to various administrative agencies about policy and enforcement). Anyone in the EHS field who thinks this is a new development has not been paying attention to OSHA over the past few years.

Historically, OSHA’s enforcement activities were shaped by the administration in power at the time. Using enforcement directives, interpretations, guidance documents and the like, various OSHA standards have been emphasized or overlooked, depending on the then-current administration’s priorities.

The Obama administration has approached OSHA differently than past administrations and, beginning in the spring of 2011, OSHA began effectively imposing new obligations for employers relative to employee health and safety. Two highly publicized initiatives that year were the Campaign to Prevent Heat Illness in Outdoor Workers and the Workplace Violence Directive.

Though there are no OSHA standards related to either initiative, OSHA used and uses the general duty clause set forth in Section 5(a)(1) to Occupational Safety and Health Act of 1970 to impose new obligations on employers relative to those areas and others where no particular standard exists. In practical application, the heat program has gone beyond application to outdoor workers and citations have been issued to a whole host of employers who have people working on indoor operations. Likewise, though the workplace violence enforcement directive focused on healthcare/social service workers and late-night retail workers, OSHA has issued a number of citations for failing to prevent employees from experiencing workplace violence in a host of settings outside those areas.

In recent months, OSHA has engaged in efforts to extend its reach with three programs: Transitioning to Safer Chemicals, Worker Safety in Hospitals and Classification of Combustible Dusts under the Revised Hazard Communication Standard. These programs will have a profound impact on many employers, yet the employer response to date appears to have been little more than a shrug or a sigh. Ostensibly, at least, the reason for this lack of reaction is an assumption that these programs will not apply to those employers.

Though OSHA specifically disclaims that the Transitioning to Safer Chemicals program imposes any new requirement on employers or that the failure to comply with the recommendations contained therein will constitute the basis of citations, we have started advising our clients that they need to look at their chemical inventories and uses and try to determine whether it would be possible to use “safer” chemicals than they currently use. It is unreasonable to expect that an employer will not be cited for using a safer chemical if there is an injury or death that arises out of the use of that chemical, even if all handling and PPE requirements are followed.

The Worker Safety in Hospitals program makes no reference to any plan to issue citations or otherwise take enforcement actions against hospitals and care facilities that do not implement the recommended measures to protect employee safety. However, in the supporting documentation, OSHA states that it “created a suite of resources to help hospitals assess workplace safety needs, implement safety and health management systems and enhance their safe patient handling programs.” Very clearly, the recommended practices are not OSHA standards, but equally clearly, OSHA will consider these practices industry standards and employers who fail to follow those industry standards in violation of the general duty clause.

The effort to create new workplace safety regulations by circumventing the formal rulemaking process is not over and is certain to continue throughout the Obama presidency. Whether the OSHA Review Commission or the courts will sustain these citations remains to be seen.

Consequently, employers face one of two choices, comply with these rules made outside the rulemaking process or incur significant legal expense taking the citations up to the OSHA Review Commission or the courts.

John Surma is Special Counsel in the Houston office of Adams and Reese. He has practiced law since 1995 and for the majority of his career he has counseled clients with health and safety issues in the workplace. He helps employers deal with compliance issues and troubled safety programs, as well as catastrophic incidents involving both people and property. In addition to his OSHA practice, he also defends his clients in the litigation that ensues from catastrophic incidents.

(Mr. Surma’s postings on do not constitute legal advice or opinion and should not be viewed as a substitute for legal advice. The information provided is based on laws and regulations in effect at the time of creation and is subject to change. Adams and Reese LLP is a multidisciplinary law firm with over 340 lawyers and advisors in 16 offices.)

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