OSHA in rubber and plastics: Updates for 2024

INDIANAPOLIS—OSHA is not, in fact, a small town in Wisconsin—and the many Midwest rubber and plastics companies that attended the Environmental Health & Safety Summit Aug. 7-8 can confirm this.

The tagline for Nelva Smith Seymour's talk on the Occupational Safety and Health Administration, charged with federal enforcement of safety procedures and regulations, is apt.

Smith Seymour, a labor and employment attorney with Columbus, Ohio-based Steptoe & Johnson P.L.L.C., offered the OSHA update as part of the first day of the annual conference.

"OSHA: Why should you care?" Smith Seymour asked the audience at the Sheraton Keystone. "The organization has been busy so far this year, and there are some important changes to consider."

Besides changes to the walkaround inspection process and heat injury and illness rules, OSHA once again upped its fines.

Serious and other-than-serious penalties increased to $16,131, up from $15,625. Willful and repeat violations increased to $161,323 per violation, up from $156,259.

In March 2023, Smith Seymour said the federal government introduced a new initiative within OSHA known as "instance-by-instance," which includes certain types of violations which the agency deems "high-gravity," serious incursions of OSHA standards.

For example, the instance-by-instance and grouping violations, which took effect March 26, 2023, may be applied when the OSHA standard allows for them.

If there is a lathe machine or mechanical power press in a facility, OSHA might come in and issue a citation for that instance.

However, the company may have 20 such machines—and this means OSHA can hit a company with 20 citations.

"This was supposedly developed for really bad actors, but it could be a compliance officer on a power trip. And OSHA encourages this instance-by-instance citing," Smith Seymour said.

About 60 people registered for this year's conference, which comprised about 80 percent plastics companies and 20 percent rubber firms.

The annual summit is organized by the Manufacturers Association for Plastics Processors and the Association for Rubber Products Manufacturers.

This year's conference was sponsored by Steptoe & Johnson, Grainger and August Mack.

There have been some major changes to the Walkaround Representation Rule, which now essentially allows for an independent third party to accompany the OSHA compliance officer during an inspection, one that "may not be an employee of the employer."

"They may accompany the Compliance Safety and Health Officer, if, in the judgment of the (officer), good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace including but not limited to because of their relevant knowledge, skills or experience with hazards or conditions in the workplace ... or language or communication skills," the revised OSHA rule reads.

Smith Seymour said the previous rule allowed for union representation (in a union shop), plant manager, industrial hygienist or safety expert to accompany the OSHA inspector.

The revised rule may allow a union business agent or union official in a non-union business to accompany the inspection.

"This was upsetting to the employer industry ... it basically allows a possible union person ... to point out issues and insert themselves in the workplace where they would not have the ability to before. There is that concern out there," she said.

Smith Seymour said there is no specific guidance in an OSHA inspector's manual that details what to look for.

"So a compliance officer in Toledo could be completely different than an officer from Cincinnati," she said.

Under the revised walkaround rule, proprietary information could be at risk as well, Smith Seymour said.

"The rule does not explain or take into account how the employer would shield its confidential information or trade secrets from third parties that might be brought into the workplace," Smith Seymour told the audience. "In addition, the rule does not exclude a third-party plaintiff's attorney from being designated and brought in by the (compliance officer).

"How do I protect my trade secrets from a third party?"

One avenue is to label documents or folios as "confidential trade secrets," which OSHA typically has to honor, Smith Seymour said.

"One of the things to think about is having that third party sign off on that confidentiality," she said. "If the compliance officer signs off, the third party has to (sign off) as well."

In addition, "employers may decide to consent only to the compliance officer, have its own expert, require a warrant and move to quash it, under certain circumstances," according to Smith Seymour.

OSHA also has proposed a Heat Injury and Illness Prevention rule, one that would require companies to implement a work site (indoor or outdoor) plan for heat-related injury and illness.

"It takes OSHA forever to implement any new rule, and this is no exception," Smith Seymour said.

For companies with 10 or more employees, the plan needs to be in writing and a heat safety coordinator should be hired—preferably one for each site.

"For indoor, employers are required to monitor heat conditions by tracking local heat index forecasts," Smith Seymour said.

The initial "heat trigger" threshold is 80-degrees, which necessitates drinking water and extra breaks as part of the plan, among other precautions.

A second heat trigger with increased precautions and protections is implemented at 90 degrees.