Audit, Compliance and Risk Blog

The presence of “hazardous” materials in your workplace can trigger a wide variety of environmental health and safety requirements. The Occupational Safety and Health Administration (OSHA) and state worker protection agencies issue standards to protect workers during occupational handling and storage. The US Environmental Protection Agency (EPA) and state environmental agencies issue requirements governing the management of hazardous wastes, and emissions to a variety of environmental media (air, water and land).

Nearly all regulatory laws provide for civil – and sometimes even criminal – penalties for noncompliance. Penalty amounts (“XXX dollars per day of violation” for example) are typically adopted as part of the original legislation. But over time, the relative sting of these penalties declines with inflation. To counteract the possibility that less painful penalties will be less effective incentives for compliance, U.S. federal law has directed most agencies to make periodic “cost of living” adjustments to maximum available civil penalty levels (there are no provisions for standing periodic adjustments to criminal penalties).

How Did These Requirements Work During 1990-2016?

The first version of this approach was enacted by the Federal Civil Penalties Inflation Adjustment Act of 1990, which directed the President to report annually on any adjustments made under existing statutory authority, and to calculate what such adjustments would have been if more agencies had the authority to make them.

Congress amended the Act in 1996 to require most agencies to make inflation adjustments every four years, but precluding adjustments to penalties under the following:

Even workplaces with very limited chemical use probably use cleaning supplies. If these supplies are bought in typical retail packaging intended for consumer use, the employer and employees may lack ready access to chemical content information beyond that on the labels. That’s because the Hazard Communication Standard (Hazcom) administered by the U.S. Occupational Safety and Health Administration (OSHA) exempts consumer products in their final form for consumer use, unless worker use is greater than that by typical consumers.

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).