Enforcement updates

As the Trump Administration pursues its agenda of de-regulation, OSHA issued a policy memo recently, reversing course on a key part of its approach to the Voluntary Protection Program (VPP). According to a May 30th memo, which revised a 2013 policy (“Memorandum #7”), OSHA will no longer automatically issue an Intent to Terminate Notice (ITT) to companies on VPP when certain events occur. Instead, the agency will take a more deferential and conciliatory approach to overseeing VPP participants. The changes implemented by the May 2018 memo took effect immediately.

Last month, OSHA’s administrator for Region VII issued a press release announcing the agency’s intention to counter the increase in work-related fatalities in Kansas, Missouri and Nebraska. During the current fiscal year (Oct17-Sep18), OSHA has investigated 34 fatalities in these states.  Sadly, that number has continued to rise in the weeks since the press release was issued.  What can we learn from this announcement?

Here’s an all-too-familiar story with an all-too-uncommon ending. An MSHA inspector saw equipment positioned a certain way, assumed that someone had used it unsafely in that position, and issued a citation. A judge then upheld the citation by giving more weight to the inspector’s assumption than to the worker’s sworn testimony about how he acted safely. But, in this case, the mine operator refused to accept that unfair result. They appealed… and won.

OSHA’s new final silica rule that dramatically reduces allowable exposures to respirable crystalline silica takes effect this week for most employers. In particular, the rule kicks in on June 23, 2018 for employers in general industry, maritime companies, and hydraulic fracturing (“fracking”) in the oil and gas industry (for fracking, engineering controls still do not take effect until June 2021).