Audit, Compliance and Risk Blog

One of California’s many unique environmental, health and safety (EH&S) laws is its “Corporate Criminal Liability Act (CCLA).” CCLA provides greatly expanded potential personal criminal liabilities for violations by managers, so is often referred to as the “Be a Manager, Go to Jail” law. Enacted in 1990, CCLA draws both from occupational safety and product liability laws, to provide sweeping requirements for corporations and managers to abate or warn exposed individuals (including employees) about a broad variety of serious concealed dangers occurring in a broad variety of circumstances, including both workplaces and products. Although this law has been used by prosecutors and advocates to strike fear into the hearts of corporate managers, there have been few reported cases in its nearly three decades on the books.

May was Better Hearing and Speech Month, and the National Institute for Occupational Safety and Health (NIOSH reminded employers that Occupational hearing loss (OHL) is one of the most common work-related illnesses in the United States. Each year, about 22 million U.S. workers are exposed to hazardous noise levels at work. NIOSH reports that U.S. employers paid more than $1.5 million in penalties for not protecting workers from noise in 2016, and that $242 million is spent annually on workers' compensation for hearing loss disability.

Health care and social service workers suffer workplace violence at much higher rates than in most other sectors, because of the higher risk from their patients and clients. In response, worker protection laws and regulations have begun to require workplace violence prevention in these sectors. The California Occupational Safety and Health Standards Board (OSHSB) just adopted a new regulation, implementing 2014 legislation that expands state requirements for hospital security plans, to include specified workplace violence prevention programs. Compliance begins in phases during 2017-2018, and will be administered by the Division of Occupational Safety and Health (Cal/OSHA)).

The Occupational Safety and Health Administration (OSHA) has issued massive revisions to its regulations requiring most employers (“General Industry”, in OSHA parlance), to protect employees from slip and fall hazards in most workplace contexts, including:

The Occupational Safety and Health Administration (OSHA) has issued massive revisions to its regulations requiring most employers (“General Industry”, in OSHA parlance), to protect employees from slip and fall hazards in most workplace contexts, including:

As entrepreneurs commercialize “nanomaterials”, occupational safety and health (OSH) agencies and professionals are developing standards to evaluate and manage the associated hazards. These protective efforts cover the full range of OSH agency efforts. The easiest step is to expand application of the Employer’s General Duty to protect workers against workplace hazards to cover nanomaterials –easiest since this Clause requires employers to take steps against “recognized” hazards, and do not bind the agencies to promulgate specific standards (I’ve written about the General Duty Clause here, and about recommendations for comprehensive safety and health programs here). At the other extreme, the Occupational Safety and Health Administration (OSHA) or other OSH agencies can issue enforceable OSH standards –so far there are none exclusively addressed to nanomaterials, although some materials do trigger some standards (see below). Between these extremes, agencies can and do offer non-mandatory but detailed guidelines for some hazards – the National Institute for Occupational Safety and Health (NIOSH) just issued such a guide for nanomaterials, building on similar publications by other agencies. The rest of this blog discusses the new NIOSH guide, “Building a Safety Program to Protect the Nanotechnology Workforce: A Guide for Small to Medium-Sized Enterprises” (NIOSH Guide), and references some of resources used to produce them.

On October 18, the Occupational Safety and Health Administration (OSHA) issued “Recommended Practices for Safety and Health Programs” (Recommendations) – which revises its 1989 “Safety and Health Program Management Guidelines” (S&H Guidelines). As the name indicates, these recommendations suggest activities employers should undertake to ensure their employees’ safety and health. They are not regulations or other requirements, but the 1989 Guidelines have long been used by agency inspectors and onsite S&H personnel as generally applicable roadmaps to safer workplaces. This month’s revision end a review process that included a proposal and request for comments published in November 2015 (I blogged about the proposal here).

The Occupational Safety and Health Administration (OSHA) has proposed to update and/or clarify dozens of provisions in its regulatory standards, within its General Industry, Construction, and Shipbuilding Standards, as the latest round in an ongoing “Standards Improvement Project.” The proposals were published in the October 4 edition of the Federal Register, and comments are due by December 5. Depending on the comments (and perhaps on the outcome of the Presidential election), OSHA plans to finalize changes early in 2017.

In July 2014, President Obama issued Executive Order (EO) Number 13673, establishing a series of reporting and procedural requirements for federal contractors, inducing them to provide “Fair Pay and Safe Workplaces” to their employees. Some requirements are specific in the EO, while others were left for clarification by revisions to the Federal Acquisition Regulation (FAR), for contracts subject to these requirements. (I blogged about the EO here). None became effective in 2014, but instead they have awaited the FAR revisions. The revised FAR has been issued effective October 25, 2016, for appropriate contracts issued by the Department of Defense (DoD), General Services Administration (GSA) and National Aeronautics and Space Administration (NASA). The new requirements will be phased in, covering contracts and subcontracts for goods and services greater than $50 million immediately, and those greater than $500,000 effective April 25, 2017.

Every workplace poses at least some potential hazards to workers, but every set of hazards is unique. To effectively identify and manage those hazards, an organization should apply logical and systematic approaches. A number of related approaches are available. A few months ago I blogged about a proposal by the Occupational Safety and Health Administration (OSHA) to revise the Safety and Health Program Management Guidelines it promulgated back in 1989 (click here) – comments were due in February and OSHA is considering what to do next. OSHA’s proposal focused on overall program design, so included important structural considerations – who’s in charge, how are expectations communicated, etc.