Workforce Bulletin

The January/February 2013 issue of Feed & Grain Magazine featured an article entitled “Severe Violator Enforcement Program Defies Constitution” authored by Eric J. Conn, the Head of EBG’s national OSHA Practice Group.  The article expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program (“SVEP”).

The article provides a detailed explanation about the SVEP, including:

1. The origin and intent of OSHA’s Severe Violator Enforcement Program;
2. the consequences to employers who “qualify” ...

By Amanda R. Strainis-Walker and Eric J. Conn

February 1^st is an important annual OSHA Injury and Illness Recordkeeping deadline for all U.S. employers, except for those with only ten or fewer employees or who operate in enumerated low hazard industries such as retail, service, finance, insurance or real estate (see the exempted industries at Appendix A to Subpart B of Part 1904).  Specifically, by February 1^st every year, employers are required by OSHA’s Recordkeeping regulations to:

1. Review their OSHA 300 Log;
2. Verify that the entries are complete and accurate;
3. Correct any ...

Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides financial services employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL).  Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.

The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division investigation of the ...

Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides hospitality employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL). Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.

The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division investigation of the DOL; ...

Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides retail employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL). Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.

The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division investigation of the DOL; ...

In a time when employers do not receive much good news out of Washington D.C., the U.S. Court of Appeals for the D.C. Circuit may have given some very welcome relief to employers facing issues before the National Labor Relations Board ("NLRB" or "the Board") in light of recent precedent reversing NLRB decisions.

A recent settlement agreement between the United States Department of Justice ("DOJ") and Lesley University in Cambridge, Massachusetts explicitly extends the protections of the Americans with Disabilities Act ("ADA") to individuals with severe allergies and autoimmune conditions such as celiac disease.

By Amanda R. Strainis-Walker and Eric J. Conn

The roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers has taken another major turn.  After decades of employees working inside grain bins with sweep augers, a string of recent, somewhat confusing, Interpretation Letters issued by OSHA effectively banned the practice outright.  Now, a groundbreaking settlement of an OSHA case against an Illinois grain company became a Final Order of the OSH Review Commission in January, and that settlement renewed the industry’s right to work inside grain bins with energized sweep augers, and provided real clarity as to the conditions that OSHA considers to be acceptable for that work.

Sweep Augers

A sweep auger is a mechanism that attaches to a pivot point in the center of a flat-bottom grain bin, and then travels at very slow speeds in a circle around the bin, pulling grain from the perimeter of the bin towards a floor sump in the center of the bin by a helical screw blade called a flighting, where the grain exits to another conveying system.  Generally, one or more workers will be positioned inside the bin behind the sweep auger to make regular adjustments to the auger to keep it advancing on track, and also to manually sweep grain not captured by the auger.

By design, a sweep auger is typically guarded from accidental contact on the top and backside, but it cannot be guarded on the front, or the flighting of the auger would not be able to contact the grain, and therefore, would not convey grain towards the center sump.  In other words, the basic functionality of a sweep auger would be nullified if it were guarded on all sides.

The Grain Standard

The legal landscape about the use of sweep augers with employees inside grain bins has had many throughout the Ag Industry confused for years.  Part of the confusion dates back to the original implementation of the Grain Handling Standard (29 C.F.R. § 1910.272).   The final Grain Standard, which was published in 1987, did not include any provision to address the use of sweep augers or the conditions in which an employee may work inside a grain bin with an energized sweep auger.  The final rule did, however, include a general requirement about equipment inside grain bins at 1910.272(g)(1)(ii):

"All mechanical, electrical, hydraulic, and pneumatic equipment which presents a danger to employees inside grain storage structures shall be deenergized and shall be disconnected, locked-out and tagged, blocked-off, or otherwise prevented from operating by other equally effective means or methods."

Varying informal interpretations by OSHA about the language in the Standard: “which presents a danger” and “other equally effective means or methods,” resulted in inconsistent enforcement by OSHA in connection with sweep augers over the years.  A series of formal OSHA Interpretation Letters beginning in 2008, however, changed that landscape.

OSHA’s Sweep Auger Interpretation Letters

Around the same time that OSHA began to scrutinize the grain industry following a rash of engulfment incidents inside grain bins, OSHA also began to focus more attention on the issue of potential employee entanglement in the moving parts of sweep augers.  That attention was spurred in part by a letter to OSHA from an insurance agent seeking a formal interpretation of requirements related to grating/guarding on sumps inside grain bins with sweep augers.

The insurance agent’s letter described a scenario in which an employer required employees to maintain a distance of at least six feet behind a partially-guarded or unguarded sweep auger.  In a September 29, 2008 Interpretation Letter from OSHA responding to the insurance agent’s request, OSHA linked 1910.272(g)(1)(ii) to the use of sweep augers, and expressed the position that employees were prohibited from being inside grain bins with energized sweep augers unless the employer could demonstrate that appropriate protections were provided to prevent employees from exposure to the hazards of the moving machinery.  OSHA further stated that completely guarding the machine and a rope positioning system to prevent employee contact with the energized equipment (i.e., a leash for employees), would be effective methods to protect employees.  Finally, the letter opined that an administrative policy requiring employees to maintain a safe distance of six feet from partially-guarded and unguarded sweep augers was not an “otherwise equally effective means or method” that satisfies 1910.272(g)(1)(ii).

Shortly after OSHA issued the September 29, 2008 Interpretation Letter, the same insurance agent sent a second request to OSHA for further clarification, explaining that a sweep auger could not, by design, be completely guarded, and that the rope positioning system that OSHA suggested would be “extremely dangerous.”  This second letter specifically asked for OSHA’s interpretation as to whether an employee could be inside a grain bin with an energized sweep auger.  OSHA responded to this second request with another formal Interpretation Letter on Christmas Eve of 2009, with a direct “no.”  OSHA reasoned in the December 24, 2009 Interpretation Letter that if the methods proposed earlier by OSHA (i.e. guarding the operating side of the auger or putting a leash on employees) were ineffective, then the Agency was “not aware of any effective means or method that would protect a worker from the danger presented by an unguarded sweep auger operating inside a grain storage structure.”

By Greta Ravitsky

The Labor and Employment practice at Epstein Becker Green publishes a regular newsletter called "Take 5: Views You Can Use," which addresses 5 L&E topics around a related subject.  The January 2013 edition of Take 5 includes some important workplace health issues associated with implementation of the Affordable Care Act (ACA), so we are providing a link to it here on the OSHA Law Update Blog.

In this month's Take 5 newsletter, one of EBG's Houston office Labor and Employment Partners, Greta Ravitsky, summarizes five important actions for employers to ...

With the U.S. presidential election behind us, it is clear that the Patient Protection and Affordable Care Act ("Affordable Care Act") is likely here to stay, having survived a U.S. Supreme Court case challenge last June. While affected employers can avoid facing penalties until 2014 for not making health care coverage available to their workforce, the U.S. Department of Labor ("DOL") has begun auditing employers' group health plans for compliance with other requirements of the law that are already in effect. As the DOL steps up its audit efforts under the leadership of the reenergized Obama administration, below are five actions that employers should consider taking in 2013.