Header graphic for print

OSHA Law Blog

ACCSH Debates Employer Recordkeeping Obligations and other OSHA Initiatives

On December 4, 2014, OSHA held an Advisory Committee on Construction Safety and Health (“ACCSH”) meeting.  ACCSH is an advisory body that provides advice and assistance to OSHA regarding construction standards. There are 15 members of this advisory committee and the committee is comprised of representatives for employers, employees, federal, state and public representatives.

In addition to hearing from Assistant Secretary Dr. Michaels and OSHA’s Director of the Directorate of Construction, Mr. Maddux, ACCSH heard presentations regarding OSHA’s Notice of Proposed Rulemaking for additional quantitative fit test protocols and employer obligations regarding recordkeeping and recording injuries and illnesses.

New Quantitative Fit Testing Protocol

Pursuant to 29 C.F.R. § 1910.134(f) employees are required to be fit tested prior to wearing tight-fitting respirators and the fit test administered must be using an OSHA-accepted fit test protocol.

Under Appendix A, Part II for § 1910.134, interested parties are able to submit an application to OSHA for approval of a new fit test protocol.  There are currently four available fit testing protocols: Generated Aerosol Quantitative Fit Testing Protocol, Ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol (PortaCount), Controlled negative pressure (CNP) quantitative fit testing protocol and Controlled negative pressure (CNP) REDON quantitative fit testing protocol.

OSHA recently received an application for new fit test protocols from TSI.  TSI submitted three fit test protocols:  “Fast-Full” method for elastomeric full-facepiece respirators, “Fall-Half” method for elastomeric half-mask respirators and “Fast-FFR” method for filtering facepiece respirators.

According to OSHA, the major differences between the proposed Fast-Full and Fast-Half methods and the OSHA-approved PortaCount protocol are that the Fast-Full includes only 3 of the 7 current test exercises (i.e. bending, head side-to-side, and head up-and-down) plus one new exercised (i.e., jogging-in-place). According to TSI, the Fast-Full method reduces each exercise duration from 60 seconds to 30 seconds, which results in a total test duration of 2.5 minutes rather than 7.2 minutes.   Similarly, the Fast-FFR method includes 4 of the current test exercises and reduces total exercise time from 7.2 minutes to 2.5 minutes.

These submitted fit test methods were evaluated using ANSI standards and met the required acceptance criteria for test sensitivity, predictive value of a pass, predictive value of a fail, test specificity and kappa statistic.

According to OSHA, TSI’s application meets the criteria established pursuant to § 1910.134 Appendix A, Part II and therefore OSHA must initiate a rulemaking to determine whether such new protocols should be added to the accepted fit test protocols.  OSHA requested that ACCSH recommend proceeding with the Notice of Proposed Rulemaking (NPRM).  ACCSH voted and recommended that OSHA proceed with a Notice of Proposed Rulemaking.  OSHA anticipates that a NPRM will be published in the Federal Register in March 2015.

Injury and Illness Recording Obligations

OSHA also sought a recommendation from ACCSH to issue a proposed rule amending the recordkeeping regulations to clarify that an employer’s duty to make and maintain accurate records of work-related injuries and illnesses is an on-going obligation during the five-year retention period.

This agency action is in response to the decision of the United States Court of Appeals for the District of Columbia Circuit in AKM LLC v. Secretary of Labor (AKM), 675 F.3d 752 (D.C. Cir. 2012).  In AKM, OSHA argued that a failure to record an injury or illness is a continuing violation that exists for the duration of the five year retention period.  Relying on the six-month statute of limitations for the issuance of citations, the Circuit Court rejected the Secretary’s argument holding that “ [n]othing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.”

Since the decision was issued in AKM, OSHA has only been permitted to cite employers for the failure to record an injury or illness within six months of the day the employer failed to make the initial record.  OSHA is now trying to rewrite the Court’s decision in an effort to be able to cite employers up to five years later (relying on the five year retention period).

OSHA presented to ACCSH new amendments to the recordkeeping requirements that the agency alleges would provide no new compliance obligations but would allow OSHA to cite up to five years beyond when an employer fails to make the initial record of a work-related injury or illness. OSHA requested that ACCSH recommend the agency move forward with issuing a NPRM to amend the recordkeeping regulations.

After a cordial but polarizing discussion, ACCSH recommended OSHA issue a NPRM amending the recordkeeping regulations.  The vote was split with 9 members recommending the issuance of a NPRM and 5 members opposing such action. The next step will be for OSHA to issue a NPRM.

Copies of the ACCSH meeting minutes and transcripts from the meeting can be found on online at OSHA’s website.

Dr. Michaels Addresses ACCSH and Talks Temporary Workers, Cell Towers, and Reporting Requirements

On December 4, 2014, OSHA held an Advisory Committee on Construction Safety and Health (“ACCSH”) meeting.  ACCSH is an advisory body that provides advice and assistance to OSHA regarding construction standards. There are 15 members of this advisory committee and the committee is comprised of representatives for employers, employees, federal, state and public representatives.

ACCSH’s agenda for this meeting included consideration of a new quantitative fit testing protocol, clarification of an employer’s continuing obligation to record injuries and illnesses and OSHA’s temporary worker initiative.

At the outset of the meeting, Assistant Secretary Dr. Michaels provided the committee with an update on various matters, including temporary workers, communication cell towers, confined space in construction and the new reporting requirements.  Dr. Michaels highlighted a few agency activities including temporary workers and specifically the agency’s focus on changing the environment in this industry.  According to Dr. Michaels “the bottom line is that the host employer has to provide a safe work place.”

Dr. Michaels also highlighted the agency’s efforts regarding communication cell towers, noting that the agency recently held a joint meeting with the Federal Communications Commission (FCC) along with representatives from major cell carriers, builders and unions.  OSHA anticipates issuing a Request for Information (RFI) in the Federal Register seeking input from impacted stakeholders on various issues related to communication cell towers.

Regarding confined spaces in construction, Dr. Michaels indicated that in November the final rule went to the Office of Management and Budget (OMB) and since then OSHA has had discussions with OMB about the final rule.  Dr. Michaels noted that the final rule is different from the proposed rule and aligns more with the general industry standard.  According to Dr. Michaels, while the final rule differs from the proposed rule, he believes that employers will be pleased with the final rule.  Dr. Michaels anticipates a final rule will be issued in the next few months.

With respect to the new reporting requirements that take effect January 1, 2015, Dr. Michaels noted that when employers call in to report a reportable event (fatality, amputation, in-patient hospitalization, or eye-loss) that OSHA will engage in a conversation with the employer.  According to Dr. Michaels this is a new approach for the agency, however, he claimed that the agency’s objective is to help employers.  When OSHA is notified of a reportable event the agency will inquire as to how the event occurred and what type of investigation the employer is or will do to determine the cause.  Additionally, Dr. Michaels stated that OSHA will have a new website up by January 1st which will allow employers to report online.

At the conclusion of Dr. Michaels’ presentation the committee was updated on activities within the Directorate of Construction by Director, Mr. Jim Maddux.

Mr. Maddux addressed several questions pertaining to cranes and operator certification.  Mr. Maddux was asked whether employers can train crane operators pending a final agency decision on operator certification and, if so, what does adequate training look like.  In response, Mr. Maddux referenced the general requirement that crane operators must be competent to do their job and suggested that employers consider some type of assessment of competency such as an interview with the operator to determine whether the operator has the necessary skills to operate a crane.  Additionally, Mr. Maddux noted that OSHA anticipates presenting ACCSH with draft regulatory text regarding crane operator certification at the spring ACCSH meeting.  The draft regulatory text will address the issue of whether certification of an operator means the operator is qualified to operate the crane, the issue of type and capacity and will also likely provide more explicit training requirements.

Copies of the ACCSH meeting minutes and transcripts from the meeting can be found on online at OSHA’s website.

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Former Coal Executive Indicted over Mine Tragedy. The former CEO of what once was the fourth largest coal producer in the U.S. has been indicted in connection with the death of 29 miners in an explosion at a West Virginia mine in April 2010.

OSHA’s Nebraska Area Office Launches Emphasis Program on Chemicals. OSHA plans to conduct programmed health inspections at Nebraska funeral homes, chemical and product manufacturing plants, printing facilities, and outpatient care centers in launching a local emphasis program to educate employers and workers about highly hazardous chemicals.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

OSHA Investigates More Temp Agencies

Eighteen months after OSHA announced the Temporary Worker Initiative (TWI), the inspection numbers show that OSHA has been aggressively investigating temporary worker staffing agencies for compliance with OSHA requirements and citing those agencies when violations are found.   

The goal of the TWI is to help prevent work-related injuries and illnesses among temporary workers.  OSHA has emphasized that temporary workers are conferred the same protections as other employees covered under the OSH Act and they should receive the same safety and hazard recognition training that employees receive.  Both the temporary worker staffing agency and the host employer share responsibility for ensuring that temporary workers are safe.  As a result of the TWI, BLS reported that inspections involving temporary worker service agencies increased 322% for fiscal year 2014. This year OSHA has conducted 283 worksite inspections employing temporary workers.  For comparison, there were 67 inspections in 2013 and only 29 inspections in 2012.   

However, violations were found on only 15% of the site visits and a total of 83 citations have been issued to temporary worker staffing agencies.  The most common citations include hazard communication (29 C.F.R. § 1910.1200), occupational noise exposure (29 C.F.R. § 1910.95) and general requirements for personal protective equipment (29 C.F.R. § 1910.132).  It is interesting to note that while federal OSHA inspections increased dramatically, inspections by state-plan OSHA has remained relatively unchanged over the last three years with 242 inspections being conducted this year.  

To read more on this topic, OSHA’s webpage on Protecting Temporary Workers can be found at:

https://www.osha.gov/temp_workers/

 

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

MSHA Sets Hearings on Proposal to Revise Civil Penalty Procedures. MSHA has scheduled two public hearings in December to take comments on its proposal to revise civil penalties procedures in connection with citations issued to mine operators under its Part 100 regulations. The hearings were scheduled in response to what the agency said were requests from stakeholders.

Defiance of OSHA Orders has Marshals Looking for Contractor. A judge has ordered the owner of an Illinois contracting company to be taken into custody for defying OSHA orders to correct what the agency has described as serious trenching hazards and for failing to pay fines.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

As Black Friday Looms, OSHA Issues Guidance on Crowd Control

In anticipation of the holiday season and an increase in holiday shoppers lured by the promise of big sales, OSHA sent a letter to major retailers last week.  The letter serves as a reminder to retailers of their responsibility to protect their employees and ensure a safe working environment under the General Duty Clause of the Occupational Safety and Health Act of 1970.  The letter directs retailers to consider adopting the safety guidelines contained in the published Fact Sheet entitled, “Crowd Management Safety Guidelines for Retailers”.  The fact sheet and letter are in response to the trampled death of a worker in 2008 as shoppers stormed through the store doors on “Black Friday” and OSHA’s concern regarding crowd management during the holiday season. 

OSHA’s “Crowd Management Safety Guidelines for Retailers” details how retailers can prepare for crowd-drawing sales events.  The guidelines are divided into three sections:  planning for the event; pre-event setup; and how to respond in Emergency Situations.  In brief, OSHA advises stores to plan ahead to ensure proper staffing levels and having trained security personnel or police officers onsite.  OSHA also advise that retailers implement crowd control measures outside the store, such as having barricades or rope lines positioned away from the immediate store entrance and explaining the entrance procedures to the people waiting in line.  Other measures that may be adopted for crowd control include making sure that outside personnel have radios or some other way to communicate with personnel inside the store and emergency responders; using mechanisms such as numbered wristbands or tickets to provide the earlier arriving customers with first access to sale items; using Internet lottery for “hot” items; and locating sale items in different parts of the store to prevent overcrowding in one place.

During the sales event, OSHA recommends providing a separate store entrance for staff, making sure that all employees and crowd control personnel are aware that the doors are about to open, positioning security or crowd managers to the sides of entering (or exiting) public and not in the center of their path, and using more than one entrance. 

OSHA also emphasizes the need to be prepared for emergencies by making sure exits are not blocked, knowing who to call in an emergency, keeping first aid kits and Automated External Defibrillators available and having people trained in first aid and CPR onsite, as well as ensuring that employees know to follow instructions from authorized first responders.  OSHA takes the approach that with good planning, proper training, and clear communication, employees can enjoy a safe work environment during holiday shopping season.

OSHA’s guidance on crowd management can be found at:  https://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.html

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

No Guidance without Comment, Business Interests Tell Supreme Court. Federal agencies should be barred from issuing interpretive guidance on their regulations unless they follow the notice-and-comment procedures in the Administrative Procedure Act (APA), business groups are urging the Supreme Court. Left unchecked, they argue, agencies have an incentive to enact intentionally vague rules, then release more specific guidance on how the rules are to be implemented, so as to achieve their “potentially controversial” goals, the groups said in an amicus brief October 16.

Judge Dismisses Pattern Charge against Mine Operator. Likening MSHA’s litigation position on its pattern of violations (POV) allegation against a West Virginia coal operator to “an unfair card game” where “the rules were announced only after the game had been played,” a judge has dismissed the agency’s pattern claim on due process grounds.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

Feds, Industry Team Up to Curb Cell Tower Deaths. Two federal government agencies have teamed up with the telecommunications industry to address a surge in fatalities among cell tower workers.

Mine Safety Commission Rebuffs Judge in Safety Case. The Federal Mine Safety and Health Review Commission has dramatically lowered a penalty set by a judge for one violation and chided her for failing to support an unwarrantable failure designation she had upheld for a second infraction.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

Workplace Safety & Health Weekly Update

The latest issue of our weekly Workplace Safety and Health newsletter is available for viewing and contains the following articles:

FMLA Takes Precedence over OSHA’s Recordkeeping Requirements, OSHRC Rules. The confidentiality requirements of the Family and Medical Leave Act (FMLA) take precedence over OSHA requirements that employers account for work-related injuries and illnesses on agency-mandated recording and reporting forms, the Occupational Safety and Health Review Commission (OSHRC) has ruled.

MSHA Proposes New Fees for Product Testing. Fees for MSHA’s process of approving mining equipment will go up if a proposed rule issued by the agency goes into effect.

In a Federal Register notice, MSHA said it wants to increase its hourly fee to $121 from $97, for processing applications and for testing, evaluating and approving mining products under its Part 5 regulation.

Click here to download the newsletter and read the full articles.

To sign up to receive the weekly newsletter, click here and fill out the form, then scroll down and check the box next to “Workplace Safety and Health Weekly Update,” which is the last item in the “Newsletters by Topic” section.  To receive all of Jackson Lewis’ workplace safety and health related news, scroll down even farther and check the box next to “Workplace Safety and Health” under the “Areas of Interest” section.

OSHA’s Issues Directive for Cranes & Derricks in Construction, Subpart CC

Last week, OSHA issued compliance guidance for its Cranes and Derricks in Construction standard, CPL 02-01-057.  The Directive provides compliance guidance to Compliance Safety & Health Officers (CSHO) for inspections of construction employers operating cranes and/or derricks in construction activities.  Additionally, the Directive serves as a source of information to employers on how OSHA interprets various requirements in the standard and provides guidance to employers regarding the types of questions OSHA is likely to ask during an inspection and the documentation they are likely to request.

A section of the Directive outlines an “Abbreviated Inspection Checklist” that includes 19 items that compliance officers should consider in an inspection of any worksite with a crane.  Some of the items instruct compliance officers to:

  1. Determine the adequacy of ground conditions beneath the equipment, such as the support, foundation, cribbing, blocking, etc.
  2. Check for visible indications of repairs of the equipment
  3. Where overhead power lines are present, ask:
  • If utility owner was contacted
  • If lines are energized
  • The voltage of the power lines (if known)
  • If a work zone was demarcated and what encroachment prevention methods are being used

4. Where signal persons are used:

  • Verify qualifications and documentation (documentation can be electronic or physical copies)
  • Verify the communication system being used between the crane operator and the signal person is the one specified on the qualification documentation

5. Inspect all rigging equipment that is available for employee use (slings, chokers, shackles) for damage, wear, safe working load tags, capacity, and safety factor.

6. Verify the load chart and operations manuals are available, written in language the operator understands.

7. Verify operator qualifications and training. Observe crane operations and interview bothe the employer and the operator to determine whether the operator is competent to operate the equipment safely

8. Verify that crane/derrick and wire rope inspections requirements have been met and documentation, where required, is available.

9. Verify that qualified riggers are being used for assembly and disassembly work and when employees are within the fall zone and hooking, unhooking, guiding a load, or making the initial connection of a load to a component or structure.

In addition to the Abbreviated Inspection Checklist, the Directive provides a chart detailing what equipment is excluded from coverage of Subpart CC based on its configuration or end use and provides the appropriate standard that does regulate such equipment when it is excluded from the Cranes and Derricks standard.  For example, powered industrial trucks (forklifts) used in construction are excluded from coverage of Subpart CC when they are not equipped with a boom and hoist.  These forklifts are governed by Section 1926.600, Motor Vehicles, Mechanized Equipment, and Marine Operations.

The Directive also provides a flow chart to assist compliance officers in determining whether equipment is covered under the scope of the Cranes and Derricks in Construction standard. A flow chart specifying when articulating/knuckle-boom truck cranes used for material delivery to a construction site are covered and are not covered is also provided in the Directive.

A copy of OSHA’s Compliance Directive for the Cranes and Derricks in Construction Standard, CPL 02-01-07, can be found here.